The European, Middle Eastern and African Antitrust Review 2017

Italy: Cartels

Anticompetitive behaviours such as price fixing, market sharing and horizontal agreements between undertakings aiming to agree commercial strategies and policies are considered the most harmful infringements of competition law and for this reason are usually at the top of the agenda of competition authorities.

The level of enforcement against cartels and anti-competitive agreements in Italy was rather intense in 2015. In the past year, the Italian Competition Authority (ICA) concluded 14 proceedings and opened eight new investigation proceedings related to anti-competitive agreements1 (two of these proceedings were already completed on April 2016)2 all under article 101 of the Treaty on the Functioning of the European Union (TFEU) except one,3 opened under article 2 of the Law No. 287 of 10 October 1990 (Competition Act).

In the first five months of 2016 the ICA opened only three new cases (an alleged cartel, an anticompetitive agreement and a public procurement case).4

The scope of the ICA’s scrutiny has been very broad; it has prosecuted not only cartels but also mere exchanges of information, inter-professional agreements and public procurement cases.

Almost all of these cases have been opened further to a complaint and in one case the ICA opened the proceedings excercising its surveillance power;5 only one was opened following a leniency application.6 The apparent failure of the leniency programme remains unresolved.

Legislation overview

Similarly to article 101 (1) of the TFEU, article 2 (2) of Law No. 287 of the Competition Act prohibits agreements that directly or indirectly fix purchase or selling prices or any other trading conditions, share markets or sources of supply. Pursuant to article 1, par. 4, of the Competition Act Italian competition rules shall be interpreted in accordance with the principles of European Community competition law.

Article 2 of the Competition Act applies to cartels that have an anticompetitive objective or effects; this may, in particular, include the prevention, restriction or distortion of competition on the Italian market. Article 2 applies irrespective of whether the conduct occurred abroad or from by undertakings that are not based in Italy. Article 101 TFEU applies when the cartel may affect trade between member states (most recently, the ICA applied article 101 in case I770 – Arca/Novartis Italfarmaco).

The ICA is responsible for the public enforcement of cartel prohibition in Italy. The rules governing investigations launched by the ICA are set out in Presidential Decree No. 217 of 30 April 1998 (the Regulation). They differ from the corresponding European procedural rules in some significant aspects. First of all, pursuant to article 8 of the Regulation, the ICA may exercise its investigative powers only after adopting a decision opening the investigation. Secondly, the investigated parties and third parties admitted to the proceedings have the right to access the ICA’s files before the communication of the statement of objections.

A leniency notice7 and a commitment notice8 complete the relevant legal framework (see above). Cartels in breach of article 2 of the Competition Act and 101 TFEU are void and unenforceable; administrative fines are applicable and damage actions can be pursued by third parties. Pursuant to article 15 of the Competition Act, the ICA may decide, depending on the gravity and duration of the infringement, to impose on each undertaking a fine of up to 10 per cent of its turnover from the previous financial year.

The ICA is also granted the power to order interim measures. However, this device is still very infrequent: in 2006 there were only two interim measures; in 2007 there was only one interim measure; and since 2008 there have been none.

The ICA’s decisions may be challenged before the regional Administrative Court of Latium (TAR Lazio), the decisions of which may be appealed before the Supreme Administrative Court.

Third parties that have suffered a prejudice as a result of the unlawful behaviour can bring private actions before civil courts to be indemnified for the loss they have suffered.

Pursuant to Law No. 27 of 24 March 2012,9 competition damages actions (and related actions) based on both Italian (article 2 of Law No. 287 of 10 October 1990)10 and EU competition law (article 101 of TFEU) lodged after 20 September 2012 shall be brought before the Tribunale delle Imprese (the Companies Court, a specialised chamber for matters concerning enterprises). The purpose of the above Law Decree was to concentrate the legal disputes before a reduced number of courts (12 tribunals instead of 164),11 with the objective of reducing the time taken to conclude proceedings involving medium/large-sized companies and improving their competitiveness on the market.12 In this context, since the entry into force of Law No. 9 of 21 February 2014,13 the jurisdiction on disputes concerning the subject matter indicated in article 3 of Legislative Decree No. 168 of 27 June 2003 (inter alia, antitrust matters) has been concentrated on the competence of the Companies Court in all cases where it is part of the claim a foreign-based company. Under article 10 of the above-mentioned law, if one of the parties to the case is a foreign-based company – even if the foreign company concerned has a branch office in Italy with permanent representation – the mandatory jurisdiction is attributed to the above-mentioned specialised courts.

Private actions for damages can either be based on the ICA’s decision (as a follow-on action) or independent from it (as a stand-alone action).

Pending the transposition of Directive 2014/104, the civil courts are not bound by the ICA’s decisions. However, according to Italian case law, the ICA’s decisions constitute a rebuttable presumption of the existence of unlawful conduct. Italian law does not provide for punitive damages; instead it only provides for compensatory damages.

Although there are no criminal sanctions in the Competition Act, certain cartel activities may be caught by Italian criminal law provisions. In particular, article 501 of the Italian Criminal Code provides criminal sanctions (including imprisonment for up to three years) for ‘market manipulation through the misuse of price-sensitive information’. According to article 501-bis of the Italian Criminal Code, individuals can be convicted (and liable to imprisonment from six months to three years and fined up to €25,822) for ‘speculations on prices and quantities of raw materials and basic food products’. Article 507 of the Italian Criminal Code provides imprisonment (of up to three years) for individuals involved in ‘boycotts’. Finally under article 353 of the Italian Criminal Code, bid rigging attracts criminal sanctions (including imprisonment from six months to five years).

The ICA has the power to close the proceeding if, within three months from the start of the investigation, the companies under investigation offer commitments to address anticompetitive concerns.14 In this situation, according to article 14-ter of the Competition Act, the ICA can make the commitments binding and close the proceedings without making an infringement finding.

Recent changes or proposal for changes

The most substantial changes occurred in Italy in the recent past with regard to anticompetitive agreements concern the guidelines on the method of setting antitrust fines and certain provisions on tenders.

After many years where the ICA set its fines applying the guidelines on the method of setting antitrust fines of the European Commission (EU Guidelines), on 31 October 2014 the ICA published its own specific guidelines adopted on 22 October 2014 (Guidelines).15

The Guidelines explain the principles that the ICA will apply in setting the fines in the case of antitrust infringements to ensure the transparency and the predictability of its decisions. The Guidelines are structured as follows: the first part deals with the basic amount of the fine, the second and third list the adjustments to the basic amounts due to aggravating and attenuating circumstances and other factors, and the last part focuses on the multiple violations of competition law.

Among the most remarkable differences between the Guidelines and the EU Guidelines are:

  • an express provision for the reduction of the fines for the undertakings that have adopted an antitrust compliance programme. According to this provision, those undertakings that have adopted and applied a tailor-made compliance programme according to the best national and European practices may benefit from a reduction of the fine up to 15 per cent; and
  • a specific paragraph dedicated to the fines in antitrust cases concerning public tenders. According to the Guidelines, in these cases the basic amount of the fine will be determined by reference to the value of the contract awarded and without taking into account the duration of the infringement. However, in specific cases the ICA will also consider the value of the sales of the undertaking concerned in the relevant market.

Furthermore, in relation to tenders, on 23 December 2014 the ICA clarified the cases in which unnecessary temporary groupings of undertakings, RTI sovrabbondanti, that is, groups of undertakings that individually are able to satisfy the financial and technical requirements to take part to tenders, can be expressly excluded from the opportunity to submit offers when the following conditions are satisfied:

  • the clause including the prohibition of RTI sovrabbondanti shall state the plausible reasons justifying the exclusion from tenders (eg, nature of serviceand/or structure of the relevant market);
  • this clause shall set forth that the exclusion is not automatic, since the contracting party has to prove the existence of concrete and actual risks that the undertakings involved in the RTI enter into anticompetitive agreements; and
  • this clause shall set forth that the contracting party has to consider the reasons provided by the undertakings involved in the RTI, including management and industrial efficiencies.16

The Italian leniency programme in the light of recent case law

According to article 15 of the Competition Act, in 2007 the ICA adopted Guidelines on the non-imposition and reduction of fines in leniency applications. The Italian leniency programme mainly follows the European Competition Network model and it differs in certain aspects from the leniency treatment granted by the European Commission (EU Commission).

Although since its introduction in Italy the leniency programme has not registered widespread use, in 2015 the ICA concluded a proceeding opened the previous year further to the request of admission to the leniency programme17 and it opened new investigation proceedings following a leniency application.18

The device allows the first company, which informs the ICA of the existence of a secret cartel and provides decisive evidence to enable the ICA to carry out targeted inspections, to obtain full immunity from fines. Other undertakings that subsequently provide information and evidence relating to the cartel may qualify for a reduction in the fines that would otherwise be imposed. Generally, the reduction will not exceed 50 per cent of the fine. This differs from the EU Commission’s leniency programme regulation, which provides for a range of discounts based on the order of arrival. In Italy, although timeliness is a relevant factor, there is no such incentive to ‘race to the court’.

For example, in the ‘Cosmetics’ cartel (see I701 Vendita al dettaglio di prodotti cosmetici),19 Procter & Gamble qualified as the third leniency applicant and was granted a 40 per cent discount in the sanction awarded; whereas in the ‘International freight forwarders cartel’, DHL qualified as the third leniency applicant but was granted a 49 per cent reduction.

In order to determine the appropriate level of fine reduction, the ICA takes into account the time at which the evidence was submitted, having regard to the phase of the proceedings and the level of cooperation provided by other undertakings, and the evidentiary value of the information and documents that are submitted. This means that providing evidence at an early stage of the proceedings will be better rewarded, at least in principle.

Leniency applicants are not entitled to simply report unlawful behaviour. Instead, they have to (i) admit their participation in the secret cartel and (ii) support their statements with evidence.20 For example, in Case I772 – Mercato del Calcestruzzo Friuli Venezia Giulia, the ICA accorded immunity from the sanction to the leniency applicant because it had not only provided crucial information on the existence of the cartel but also evidence of such information.

In its recent judgment in Case I733 – Servizi di agenzia marittima,21 the TAR Lazio22 annulled the decision through which the ICA had ascertained a price-fixing cartel involving 15 maritime agencies and two trade associations, notwithstanding the fact that the investigations were driven and supported by statements and documents provided by two leniency applicants. However, in principle the TAR Lazio did not challenge the reliability of the leniency applications and simply disputed the wrongful qualification of the conducts described by the leniency applications as unlawful, underlining the ICA’s burden to prove that an infringement of competition law had occurred.

The decision has been recently upheld by the State Council that was not convinced by the ICA’s argument, according to which the TAR Lazio judgment would have frustrated the leniency programme. The State Council stated that the leniency programme covers only secret horizontal agreements and in the case at hand the declarations of the participants and other findings did not prove this secrecy. Moreover, according to the State Council, the confessions only prove that meetings between undertakings occurred but did not demonstrate the existence of an anticompetitive horizontal agreement.23

More recently, the State Council has made clear that the discrepancy between the declarations made by two leniency applicants in the same proceedings is not relevant in order to dismiss the relative decision of the ICA when such inconsistency is not able to compromise the coherence of the investigation framework of the Authority.24

Useful indications on the priority of leniency applications simultaneously filed both with the EU Commission and the ICA have been provided by the TAR Lazio in the appeals against the ICA’s decision I722 Logistica internazionale25 on 19 freight forwarders and a trade association.

The main point made by the TAR Lazio26 originated from the appeal of DHL, which first applied for leniency with the EU Commission and then with the ICA. Specifically, the TAR Lazio rejected DHL’s appeal, highlighting that the law is not concerned with the relationship between a leniency application before the EU Commission and one before the Italian Competition Authority. According to the TAR Lazio, no ‘necessary presupposition’ exists between the above applications.

The State Council has sought guidance from the European Court of Justice on how to deal with applications for the leniency programme when they are made both to the EU Commission and national competition authorities. The core question is to obtain the proper interpretation of the relationships between leniency applications submitted both at the European Union level and the national level.27

The sanctions

The Competition Act awards the ICA the power to impose sanctions in cases of antitrust infringements. Pursuant to article 15 of the Competition Act, where the ICA finds that there has been an antitrust infringement, it shall order the undertakings concerned to terminate the infringement, and it may decide, depending on the gravity and the duration of the infringement, to impose an administrative fine of up to 10 per cent of the turnover of each undertaking or entity involved in the infringement during the prior financial year.

The Competition Act also provides for administrative fines when there is a lack of cooperation during the investigation. Article 14 of the Competition Act states that the ICA may impose a fine up to €25,822 on any natural personal who refuses or fails to provide the information or exhibit the documents in response to a request made during an investigation. The sanction is increased up to €51,645 when the information or the documents supplied are untruthful.

Pursuant to article 31 of the Competition Act, the general regulation of the administrative fines contained in Law No. 689/1981 applies to the fines imposed by the ICA insofar as it is compatible with the Competition Act. Italian case law has clarified that Law No. 689/1981 sets the general criteria for calculating the amount of the fine, while the Competition Act and Regulation No. 217/1998 regulate the procedure by which the fines are imposed by the ICA.

In compliance with the obligation to apply Italian competition rules in accordance with the principles of European Union competition law, until the end of October 2014, the ICA had refined its method of calculating the amount of fines by applying the EU Guidelines, while the ICA has started applying the Guidelines from the beginning of November 2014. Like the EU Commission, the ICA first determines the basic amount of the fine in proportion to the value of the sales relating to the infringement. It then multiplies this number by reference to the number of years (or parts of years) the infringement lasted. Finally, it applies the aggravating or mitigating circumstances or both.

The most remarkable provision introduced by the Guidelines is the reduction of fines in case of antitrust compliance programmes (see above for further information).

As regards the reduction in fines for financial hardship, the ICA already deviated from the EU Guidelines by granting the reduction even though the company only made losses in the previous fiscal year, whereas under EU competition law there must have been three consecutive years of losses.28 Pursuant to the Guidelines, only the losses in the previous financial years will not be considered by the ICA to obtain a reduction.

The Guidelines provides for a reduction of fines for commitments offered by the parties when these are aimed at eliminating or reducing the effects of competition law infringements. This mitigating circumstance is not a novelty for the ICA, which has already been applying it to date in accordance with article 11 of Law No. 689/1981.

Delays in the payment of the fines imposed by the ICA result in additional fines. Pursuant to article 27 (6) of Law No. 689/1981, the original fine is increased by 10 per cent for every six months of delay after the deadline for paying the original fine.

In a recent judgment,29 the State Council established that in cases where the original fine has been annulled by the first-instance judgment and has been later restored by the court of appeal, the fine for the delay is charged even for the period during which the original fine was annulled. According to the State Council, if the annulment judgment is overturned, it has to be deemed never to have occurred. Therefore, the fined party cannot oppose the annulment as a justification for the delay in the payment of fines. However, in the most recent judgment, the TAR Lazio case law stated that a fine for the delay shall not be imposed for the period between the annulment of sanctions and their reinstatement.30

In 2015, the ICA concluded 14 proceedings31 regarding possible infringements of article 2 of the Competition Act or article 101 TFEU, while four proceedings32 were concluded in the first five months of 2016. In 16 of these cases, it ascertained that there had been an infringement of competition law and imposed fines on the undertakings involved for a total amount of about €329 million. The fines imposed on a single undertaking ranged from about €3,058 to €56 million.

At the one end, the lowest fine was imposed in case I771 – Servizi di Post-Produzione di programmi televisivi RAI where the ICA imposed a fine equal to €793,829 on 22 companies active in the provision of services for the production of TV programmes. The ICA ascertained an information exchange between such companies during their participation in the tenders organised by the Italian public broadcaster.

At the other end, the highest fine of about €114 million was imposed in case I785 – Gara CONSIP Servizi di Pulizia nelle Scuole. In this case, the ICA has ascertained the existence of a cartel during the participation in a public tender organised by CONSIP [the public entity aimed at seeking the supply of services for the Public Administration] for the provision of cleaning services in the public school buildings. The high value of the sanction depends on the basic amount of the fine taken in consideration by the ICA, according to the Guidelines, equal to the value of the contract awarded. The ICA has distributed such amount to each undertaking involved in the infringement according to their participation in the tender and then multiplied it by 15 per cent, in consideration of the degree of gravity of the infringement.

In accordance with article 261 TFEU, article 134 of the Italian Code of Administrative Procedure states that the fines imposed by the ICA are subject to full judicial review by the administrative courts, which may cancel, reduce or increase the fine. To this end, the administrative courts have invited the ICA in several cases33 to define the factors used to set the fines in its decisions: the decisions should express the percentage of the value of the sales used to determine the basic amount of the fines and the percentages applied for the aggravating circumstances and mitigating circumstances.

The administrative courts are usually very careful to check whether the ICA has properly applied the aggravating circumstances. For instance, in the appeal against the ICA’s decision I731 Insurance tenders for Compania ASL [local health authority] and hospitals,34 the TAR Lazio found that the ICA had failed to provide sufficient and clear reasoning for the imposition of an aggravating circumstance.35

Commitment decisions

Law Decree No. 223/2006 – also known as the Bersani Decree – converted with modifications by Law No. 248 of 4 August 2006 introduced, inter alia, commitment decisions into the Italian legal framework by including article 14-ter in the Competition Act.36 The Italian commitment decisions expressly refer to the European model so that the ICA has to apply the device under discussion within the limits of the European legal framework.37

In line with the Italian administrative case law a finding is required when the infringement appears unprecedented, when the market context is changed or when the investigation concerns hard-core restrictions.38 Accordingly, the ICA cannot issue commitment decisions in the case of cartels.

In order to implement procedures for article 14-ter of the Competition Act, the ICA issued the Resolution of 6 September 2012, No. 23863, which follows the related European procedures.39 According to these procedures, the investigated undertakings may try to interrupt the investigation launched by the ICA, submitting legally binding commitments as to their future behaviour capable of eliminating the antitrust concerns investigated by the ICA. The ICA’s assessment of the commitments concerns the technical suitability of the submitted proposal to remove the issues under investigation and the opportunity to terminate the kind of infringement under discussion without making a finding as to whether there has been a competition law infringement.

So far, the ICA has accepted commitments in 69 cases. Of these, 30 regard investigations concerning hypothesis of anti-competitive agreements and 39 concern cases of alleged abuses of dominant position. This statistic appears coherent with the above-mentioned limits regarding hard-core restrictions.

In the period 2009–2015, the ICA adopted 58 sanction decisions including both abuses of dominant position and anticompetitive agreements and 46 commitment decisions. In the light of this, it is clear that in the 2009–2015 period the commitment decisions represented a very significant part of the ICA’s enforcement. As observed, this could mean that in the said period the ICA also used this device with reference to not so relevant cases (eg, I681). In the same manner, the ICA could also resort to the commitment decisions when the investigation regarded significant hypotheses of infringement (eg, I651).40

In order to better understand these data, it seems useful to compare them with the practice of other European authorities in the same period. As is well known, the application of commitment decisions by the ICA was largely more significant in the EU, Spain and Germany.41

In 2015 and in the first five months of 2016 the ICA has not made widespread use of commitment decisions. Indeed, within the context of anticompetitive agreement investigations, the ICA issued one commitment decision in 201542 and one commitment decision in 2016.43

Private enforcement

As far as we know,44 the number of civil actions related to anti-competitive agreements in Italy continues to be limited.

However, the decreasing number of the commitment decisions issued by the ICA in 2015 could likely increase the number of actions for damages in the next future.

In addition, in Italy private enforcement continues to be mainly concentrated with reference to abuse cases.

The most significant and recent action for damages is the action, launched in 2014, based on the ICA’s decision finding that Roche and Novartis infringed article 101 TFEU by participating in an anticompetitive agreement in the market for ophthalmic drugs used to treat some serious vascular eyesight conditions, including age-related macular degeneration. On this basis, the ICA fined the above companies for collusion in an attempt to stop the use of Roche’s Avastin cancer drug as a treatment for an eye disease. The illegal agreement benefited Novartis’ Lucentis drug, which is more expensive than Avastin. In light of this, the ICA imposed on Roche and Novartis fines totalling €90.5 and €92 million respectively.45

Indeed, on May 2014 Italy’s Health Ministry said in a statement that it is seeking compensation from Roche and Novartis after the ICA’s decision. Specifically, the ministry quantified the harm as
being €45 million in 2012, €540 million in 2013, and predicted €615 million in 2014.46 The action is still pending.

Novartis and Roche have challenged the ICA’s decision before the TAR Lazio,47 which has confirmed the ICA decision. The appeal lodged by the two companies against the TAR Lazio decision was recently suspended because of the presentation by the State Council48 of a preliminary ruling before the European Court of Justice.

With regard to class actions, it is worth highlighting that this kind of device should have been permitted in Italy as of January 2010 with reference to illicit conduct realised after 15 August 2009. Pursuant to article 140-bis of Legislative Decree No. 206 of 6 September 2005, No. 206 (Italian Consumer Code) class actions could be brought by any consumer or user seeking damages or declaratory relief for a violation of rights that is ‘homogeneous’ to those suffered by other consumers or users that arise from certain actionable breaches of contract or torts, including anti-competitive activities.

The Parliament is currently discussing a bill to repeal article 140-bis and set forth new provisions. First of all, the said bill suggests moving the class action’s provisions in the Italian Code of Civil Procedure in order to make this device an instrument of protection available to anyone (business or consumer) that has been damaged by a mass tort. This point appears consistent with the proposal to bring the class actions before the Companies Court. In addition, pursuant to the above said proposal, the class action would no longer be actionable except in a limited number of cases. Finally, even if the structure remain opt-in based, the proposal provides the possibility to join, not only after the ruling that admits the class action, but also after the final judgment rendered by the court within the time limit fixed by the decision, which cannot exceed 180 days. The proposal also indicates the conditions for the inclusion in the class.49

To date, as far as we know, the only antitrust class action declared admissible has been launched against a group of ferries involved in an investigation for an alleged anticompetitive agreement. The investigation was closed on June 2013, ascertaining that the companies Moby, SNAV, Grandi Navi Veloci and Marinvest entered into an agreement aimed at increasing prices for their passenger transportation services during summer 2011 on the Civitavecchia–Olbia, Genoa–Olbia and Genoa–Porto Torres routes. For these conducts, the ICA resolved to sanction the companies with a fine of €8,107,445, which took into account the companies’ losses for the financial year.50

Nonetheless, the TAR Lazio upheld the appeal of the ferry companies against the ICA’s decision51 and the TAR Lazio’s decision was confirmed by the State Council.52 Therefore it is likely that the class action at issue will be dismissed.

Finally, as far as the transposition of Directive 2014/104/EU is concerned, on 14 May 2015 the Italian Senate amended the delegation to the government for the transposition of EU Directives in order to also accomplish the above-mentioned task.

Notes

  1. See ICA, I710 – Usi in materia di mediazione immobiliare, Decision of 18 November 2015, No. 25733, in Boll. Uff. No. 44/2015; ICA, I742 – Tondini per cemento armato, Decision of 21 October 2015, No. 25674, in Boll. Uff. No. 39/2015; I748B – Condotte restrittive del CNF-Inottemperanza, Decision of 27 May 2015, No. 25487, in Boll. Uff. No. 21/2015; ICA, I789 – Agenzie di modelle, Decision of 18 March 2015, No. 25381, Boll. Uff. No. 10/2015; ICA, I790 – Vendita diritti televisivi Serie A 2015–2018, Decision of 13 May 2015, No. 25462, Boll. Uff. No. 18/2015; ICA, I791 – Mercato del Noleggio Autoveicoli a Lungo Termine, Decision of 22 July 2015, No. 25575, in Boll. Uff. No. 29/2015; ICA, I792 – Gare Ossigenoterapia e Ventiloterapia, Decision of 7 October 2015, No. 25646, Boll. Uff. No. 37/2015; ICA, I793 – Aumento prezzi cemento, Decision of 18 November 2015, No. 25710, Boll. Uff. No. 43/2015.
  2. See ICA, I748B – Condotte restrittive del CNF, Decision of 10 February 2016, No. 25868, in Boll. Uff. No. 5/2016; ICA, I790 – Vendita diritti televisivi Serie A 2015–2018, Decision of 19 April 2016, No. 25966, Boll. Uff. No. 13/2016.
  3. See ICA, I710 – Usi in materia di mediazione immobiliare, Decision of 18 November 2015, No. 25733, in Boll. Uff. No. 44/2015.
  4. See ICA, I794 – Abi/Seda, Decision of 21 January 2016, No. 25813, Boll. Uff. No. 1/2016; ICA, I796 – Servizi di supporto e assistenza tecnica alla PA nei programmi cofinanziati dall’UE, Decision of 15 March 2016, No. 25919, Boll. Uff. No. 9/2016; ICA, I797 – Consiglio Notarile di Roma, Velletri e Civatecchia/Delibera in tema di distribuzione del lavoro nella dimensione pubblica, Decision of 19 April 2016, No. 25983, in Boll. Uff. No. 14/2016.
  5. See ICA, I710 – Usi in materia di mediazione immobiliare, Decision of 18 November 2015, No. 25733, in Boll. Uff. No. 44/2015.
  6. See ICA, I789 – Agenzie di modelle, Decision of 18 March 2015, No. 25381, Boll. Uff. No. 10/2015.
  7. ICA, Notice on the non-imposition and reduction of fines pursuant to article 15, Law No. 287/1990, Decision of 15 February 2007, No. 16472, in Boll. Uff. No. /2007, and modified with Decisions of 6 May 2010, No. 21092, 31 January 2013, No. 24219 and 31 July 2013, No. 24506, in Boll. Uff. No. 35/2013.
  8. See ICA, Notice on the application of article 14-ter, Law No. 287/1990, Decision of 6 September 2012, No. 23863, in Boll. Uff. No. /2012.
  9. Which brought the Law Decree No. 1 of 24 January 2012.
  10. Pursuant to article 33 of the same law.
  11. See the Technical Report added to Law Decree No. 1 of 24 January 2012.
  12. The above-mentioned court will have regard only to the actions launched after the entry into force of Law No. 27of 24 March 2012, which brought the above-mentioned Law Decree into effect.
  13. Which brought Law Decree No. 145 of 23 December 2013 (the Decreto Destinazione Italia).
  14. The said term, which is not peremptory, is aimed to avoid dilatory conducts: see M. LIBERTINI, La decisione di chiusura dei procedimenti per illeciti antitrust a seguito di impegni delle imprese interessate (article 14-ter, l. 10 ottobre 1990, n. 287), in Giornale di diritto amministrativo, 2006, p. 1286; see, ex pluribus, TAR Lazio, sec. I, 7 April 2008, No. 2902.
  15. See, ICA decision of 22 December 2014, No. 25152 – Guidelines on the method of setting fines according to article 15 of the Competition Act.
  16. See ICA, Notice dated 23 December 2014 available at the following link www.agcm.it/normativa/concorrenza/7450-comunicazione-avente-ad-oggetto-lesclusione-dei-raggruppamenti-temporanei-di-imprese-qsovrabbondantiq-dalle-gare-pubbliche.html.
  17. ICA, I772 – Mercato del Calcestruzzo Friuli Venezia Giulia, Decision of  25 March 2015, No. 12/2015, in Boll. Uff. No. 12/2015.
  18. ICA, I789 – Agenzie di modelle, Decision of 18 March 2015, No. 25381, in Boll. Uff. No. 10/2015.
  19. ICA, I701 – Vendita al dettaglio di prodotti cosmetici, Decision of 15 December 2010, in Boll. Uff. No. 49/2010.
  20. See TAR Lazio, sec. I, 17 November 2011, No. 8945.
  21. ICA, I733 Servizi di agenzia marittima, Decision of 22 February 2012, No. 23338, in Boll. Uff. No. 9/2012.
  22. TAR Lazio, sec. I, 15 January 2013, No. 363.
  23. State Council, sec. VI, 8 July 2014, No. 3464.
  24. State Council, sec. VI, 18 May 2015, No. 2514.
  25. See ICA. I722 Logistica internazionale, Decision of 15 June 2011, No.  22521, in Boll. Uff. No. 24/2011.
  26. TAR Lazio, sec. I, 29 March 2012, No. 3034.
  27. State Council, sec. VI, 4 September 2014, Order No. 4508.
  28. See, ex multis, ICA, I733 – Servizi di agenzia marittima, Decision of 22 February 2012, No. 23338, in Boll. Uff. No. 9/2012; ICA, I731 – Gare assicurative ASL e aziende ospedaliere campane, Decision of 28 September 2011, No 22838, in Boll. Uff. No. 39/2011; ICA, I722 Logistica internazionale, Decision of 15 June 2011, No. 22521, in Boll. Uff. No. 24/2011.
  29. See State Council, sec. VI, 25 May 2012, No. 3058.
  30. See TAR Lazio, sec. I, 11 June 2013, No. 5822. See also TAR Lazio, sec. I, 6 May 2015, No. 6471; TAR Lazio, sec. I, 1 June 2015, No. 7755.
  31. See ICA, I689C – Organizzazione Servizi Marittimi nel Golfo di Napoli, Decision of 28 January 2015, No. 25295, Boll. Uff. No. 4/2015; ICA, I744 – Gare RCA per Trasporto Pubblico Locale, Decision of 25 March 2015, No. 25382, in Boll. Uff. No. 10/2015; ICA, I759 – Fornitura Trenitalia, Decision of 27 May 2015, No. 25488, Boll. Uff. No. 21/2015; ICA, I761 – Mercato dei Servizi Tecnici Accessori, Decision of 16 December 2015, No. 25784, in Boll. Uff. No. 47/2015; ICA, I765 – Gare Gestioni Fanghi in Lombardia e Piemonte, Decision of 3 February 2015, No. 25302, in Boll. Uff. No. 6/2015; ICA I770 – Arca/Novertis – Italfarmaco Decision of 4 June 2015, No. 25508, Boll. Uff. No. 22/2015; ICA, I771 – Servizi di Post-Produzione di programmi televisivi RAI, Decision of 27 May 2015, No. 25499, in Boll. Uff. No. 21/2015; ICA, I772 – Mercato del Calcestruzzo Friuli Venezia Giulia, Decision of 25 March 2015, No. 25401, in Boll. Uff. No. 12/2015; ICA, I775 – Procedure di Affidamento dei Servizi di Ristoro su Rete Autostradale ASPI, Decision of 22 April 2015, No. 25435, in Boll. Uff. No. 15/2015; ICA, I776 – Mercato della Produzione di Poliuretano Espanso Flessibile, Decision of 10 June 2015, No. 25512, in Boll. Uff. No. 23/2015; ICA, I780 – Mercato del Calcestruzzo in Veneto, Decision of 22 December 2015, No. 25801, in Boll. Uff. No. 49/2015; ICA, I782 – Gare per Servizi di Bonifica e Smaltimento di Materiali Inquinanti e/o Pericolosi presso gli Arsenali di Taranto, La Spezie ed Augusta, Decision of 18 November 2015, No. 25739, in Boll. Uff. No. 45/2015; ICA, I784 – Ecoambiente-Bando di gara per lo Smaltimento dei Rifiuti da Raccolta Differenziata, Decision of 29 July 2015, No. 25599, in Boll. Uff. No. 30/2015; ICA, I785 – Gara CONSIP Servizi di Pulizia nelle Scuole, Decision of 22 December 2015, No. 25802, in Boll. Uff. No. 50/2015.
  32. See ICA, I748B – Condotte restrittive del CNF-Inottemperanza, Decision of 10 February 2016, No. 25868, in Boll. Uff. No. 5/2016; ICA, I777 – Tassi sui  mutui nelle province di Bolzano e Trento, Decision of 24 February 2016, No. 25882, in Boll. Uff. No. 6/2016; ICA, I779 – Mercato dei servizi turistici – prenotazioni alberghiere online, Decision of 23 March 2016, No. 25940, in Boll. Uff. No. 11/2016; ICA, I790 – Vendita diritti televisivi Serie A 2015 – 2018, Decision of 19 April 2016, No. 25966, in Boll. Uff. No. 13/2016.
  33. TAR Lazio, sec. I, No. 6044/2012; TAR Lazio, sec. I No. 3268/2012; State Council, sec. VI, No. 3013/2011; State Council, sec. VI, No. 6469/2007.
  34. ICA, I731 – Gare assicurative asl e aziende ospedaliere campane, Decision of 28 September 2011, No 22838, in Boll. Uff. No. 39/2011.
  35. TAR Lazio, sec. I, 3 July 2012, No. 6044.
  36. The same Decree has introduced also the leniency and the interim measures in the Italian legal framework.
  37. Indeed, only one difference exists between the two disciplines consisting of the quarterly period starting from the launch of the related investigation by which the concerned undertakings can submit a commitment proposal. The said term, which is not peremptory, is aimed to avoid dilatory conducts: see M Libertini, La decisione di chiusura dei procedimenti per illeciti antitrust a seguito di impegni delle imprese interessate (article 14-ter, l. 10 ottobre 1990, No. 287), in Giornale di diritto amministrativo, 2006, p. 1286; TAR Lazio, sec. I, 23 January 2008, No. 2902.
  38. See ICA, I646 – Produttori vernici marine, Decision of 15 November 2006, No. 16151, in Boll. Uff. No. 46/2006; ICA, I649 – Produttori di pannelli truciolati in legno, Decision of 17 May 2007, No. 16835, in Boll. Uff. No. 20/2007; TAR Lazio, sec. I, 29 December 2007, No. 14157; State Council, sec. VI, 23 March 2009, No. 1190; TAR Lazio, sec. I, 2 December 2009 No. 12319. However, in some cases of cartels concerning prices the ICA applied the device under discussion: see ICA, I661 – Accordi interbancari Abi/Co.ge.ban, Decision of 18 April 2007, No. 16709, in Boll. Uff. No. 14/2007; ICA, I668 – Ordine dei medici veterinai di Torino, Decision of 21 February 2007, No. 16500, in Boll. Uff. No. 8/2007. To this regard see L. Di Via, Le decisioni in materia di impegni nella prassi decisionale dell’Autorità Garante, in Mercato Concorrenza Regole, 2007, p. 229.
  39. It amended the previous Resolution of 12 October 2006, No. 16015, as integrated by the Resolution of 11 February 2011, No. 22089.
  40. See ICA, I681 – Prezzi dei carburanti in rete, Decision of 20 December 2007, No. 17754, in Boll. Uff. No. 48/2007; ICA, I651 – ADS Accertamenti Diffusione Stampa – Audipress, Decision of 21 February 2007, No. 16474, in Boll. Uff. No. 7/2007; ICA, A357 – Tele2/Tim-Vodafone-Wind, Decision of 24 May 2007, No. 16871, in Boll. Uff. No. 20/2007. See also F Ghezzi, L’applicazione del diritto antitrust sotto la Presidenza Catricalà: obiettivi e priorità nella disciplina delle intese, 2009, available at www.antitrustisti.net; G Demartini, La definizione del procedimento antitrust tra esigenze di efficienza e tutela degli interessi coinvolti, in Diritto del Commercio Internazionale, 23, 2009, p. 922; A Pera – G Codacci Pisanelli, Decisioni con impegni e private enforcement nel diritto antitrust, in Mercato Concorrenza Regole, 2012, I, p. 773 and f.
  41. See A Pera – G Codacci Pisanelli, Decisioni con impegni e private enforcement nel diritto antitrust, in Mercato Concorrenza Regole, 2012, I, p. 74 and f. See www.osservatorioantitrust.eu/it.
  42. See ICA I770 – Arca/Novartis – Italfarmaco, Decision of 4 June 2015, No. 25508, Boll. Uff. No. 22/2015.
  43. See ICA I779 – Mercato dei Servizi Turistici-Prenotazioni Alberghiere On Line, Decision of 23 March 2016, No. 25940, Boll. Uff. 11/2016.
  44. In Italian legal framework there is no pubblicity for actions for damages.
  45. See I760 – Roche-Novartis/Farmaci Avastin e Lucentis, Decision of 27 February 2014, No. 24823 in Boll. Uff. n. 11/2014.
  46. See www.ilsole24ore.com/art/notizie/2014-05-28/novartis-roche-ministero-chiede-12-miliardi-risarcimento--191407.shtml?uuid=ABTLtyLB.
  47. The TAR Lazio confirmed the ICA’s decision: see TAR Lazio, sec. I, 2 December 2014, No. 12168. The appeal before the State Council is still pending.
  48. State Council, sec. VI, 11 March 2016, No. 966.
  49. www.camera.it/leg17/995?sezione=documenti&tipoDoc=lavori_testo_pdl&idLegislatura=17&codice=17PDL0031100&back_to=#PD.
  50. ICA, I743 – Tariffe traghetti da/per la Sardegna, Decision of 11 June 2013 No. 24405, in Boll. Uff. No. 25/2013.
  51. TAR Lazio, sec. I, 7 May 2014, No. 4730.
  52. State Council, sec. VI, 4 September 2015, No. 4123.

Previous Chapter:Italy: Competition Authority

Next Chapter:Latvia: Competition Council

Interested in becoming a GCR author? Please contact our co-publishing manager.

Get in touch