By: Livia Oglio
Since February 3, 2017 damages actions for antitrust violations in Italy are governed by the new rules enacted by Legislative Decree no. 3/2017, implementing the 2014 EU Antitrust Damages Directive (Directive 2014/104/EU).
The European Commission's initiative stems from the awareness that, while the right to full compensation is guaranteed under the EU Treaties directly, the practical exercise of this right by victims of antitrust violations was often non effective or occurred in a way that made it excessively difficult or almost impossible because of the applicable rules and procedures in the national legal systems concerned.
Thus, the purpose of the new rules is to render private damages actions less burdensome (hence more accessible also in terms of legal costs) so as to encourage victims of antitrust violations to sue the infringers before the national courts and obtain full compensation for the harm suffered.
The main changes brought into our legal system by Legislative Decree no. 3/2017 are:
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the new regime of evidence discovery orders, which is substantially broadened in comparison with the reach of the general discovery orders contemplated in the Italian Code of Civil Procedure1; specific rules are also provided in relation to access to evidence contained in the files of the Italian Competition Authority and to cooperation between the court and the same administrative authority2;
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the establishing of the binding nature of a final decision of the Italian Competition Authority finding that an infringement occurred3; the statutory provision adds that the binding effect does encompass the nature of the infringement and its material, personal and territorial scope as determined in the decision issued by the authority (possibly, as resulting after the final review by the court) while it does not extend to the causal link and existence of damage4; when an infringement decision is issued in another EU Member State, the same finding will only serve as one element of evidence of the existence of a violation and remain subject to the court's own assessment, in absence of rebuttal proof;
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the clarification of the rules on time limitation, by way of regulation of specific cases of interrumption or suspension of the relevant limitation period5;
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the introduction of special rules pertaining to the distribution of the burden of proof, including the regime of the passing on defense6.
Furthermore, the provisions set forth by Legislative Decree no. 3/2017 transpose into the Italian legal system the principles set by the Directive aimed at facilitating the recourse to out-of-court means of resolution of antitrust damages claims7; among those, arbitration proceedings are actually also contemplated in the Italian implementation act (while there was no reference to them in the Directive)8. This seems a point which is likely to give rise to controversial interpretations, owing to the fact that arbitration is a way of solving disputes as an alternative to lawsuits before judicial courts9, not an intermediate step, like mediation or conciliation, whereby the parties do not lose the right to refer the dispute to the courts (or to arbitration) should their attempt to resolve it out-of-court fail.
Provisions are also set to govern the effects of partial consensual settlements on subsequent actions for damages10.
It is interesting to note that, although the Directive does not apply to collective recovery actions, Art. 1 of Legislative Decree no. 3/2017 prescribes that also class actions11 resulting from the infringement of competition law shall be governed by its rules.
Finally, Art. 17 of Legislative Decree no. 3/2017 changes the Italian Competition Act (Law no. 287/1990) to provide that the Italian Competition Authority may apply Arts. 101 and 102 TFEU even in parallel and in relation to the same case. This provision overturns the way the system had previously worked since the enactement of the Italian Competition Act, which was based on the "unique barrier" principle.
Damages actions are now expected to increase in number in Italy, although they will be concentrated before three courts only (Milan, Rome and Naples), at highly specialised chambers.
1Arts. 3, 4 5 and 6 of Legislative Decree no. 3/2017, implementing Arts 5, 6, 7 and 8 of the Directive. The new system relies on the central function of the court seized with an action for damages: disclosure of evidence held by the opposing party or a third party can only be ordered by judges and is subject to strict and active judicial control as to its necessity, scope and proportionality.
2Arts. 4 and 5 of Legislative Decree no. 3/2017, implementing Arts 6 and 7 of the Directive.
3Art. 7 of Legislative Decree no. 3/2017, implementing Art. 9 of the Directive. It is worth remembering that Article 16(1) of EU Council Regulation No 1/2003 provides that when national courts rule on agreements, decisions or practices under Article 101 or Article 102 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. National courts must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay the proceedings pending before it.
4The same rule is to be found in Recital 34 of the Directive. Criteria for assessment of the causal link and existence of damages resulting from tort liability are governed by Art. 2056 of the Italian Civil Code by reference to Arts 1223, 1226 and 1227 of the Italian Civil Code. The rule is restated in Art. 14 of Legislative Decree no. 3/2017, implementing Art 17 of the Directive, which contains the presumption that damages are presumed in cartel cases.
5Arts. 8, 9.4 and 15 of Legislative Decree no. 3/2017, implementing Arts 10, 11 and 18 of the Directive.
6The new rules now establish exceptions to the ordinary regime set forth by Art. 2697 of the Italian Civil Code.
7Arts. 14, 15 and 16 and 6 of Legislative Decree no. 3/2017, implementing Arts 17, 18 and 19 of the Directive.
8Arbitration proceedings are included in the list of out-of-court dispute resolution proceedings defined under Art. 2 s) and the arbitration award is expressly mentioned under Art. 16 of the Decree.
9However, a peculiar kind of arbitration, so-called "arbitrato irrituale" known only to the Italian legal system, is a caveat to the general rule.
10Art. 16 of Legislative Decree no. 3/2017, implementing Art. 19 of the Directive.
11Class actions are regulated by Art. 140bis of Law Decree n. 206/2005 (Consumer Code).
