Availability of civil claims
Scope for civil claims in Italy
Stand-alone and follow-on claims are available in Italy.
Individuals and corporations may bring actions for damages arising from infringements of Italian or EU competition law by corporations and individuals (provided that the individual qualifies as a “personal undertaking” (imprenditore individuale) or a person trading as a business).
A claim for damages can be brought regardless of whether a finding of infringement has been made by the competition authorities. The courts will take into account findings of national competition authorities when deciding a private competition enforcement case but are not bound to follow such decisions. However, where an infringement of competition law has been identified by a decision of the European Commission, Italian courts will consider themselves bound by the findings made in that decision (Article 16 of Regulation 1/2003). An Italian court may therefore opt to stay proceedings brought in reliance on a European Commission decision where that decision is subject to appeal before the European courts so as not to reach a judgment that is irreconcilable with the outcome of that appeal or appeals.
Applicable limitation periods
Civil claims are generally based on tort. Tortious claims must be brought within five years of the relevant infringement occurring.
The Italian Supreme Court has ruled that limitation does not begin to run until the moment when the infringement becomes evident to the potential claimant (rather than from the date on which damage actually occurred). 1 On the basis of Articles 2935 and 2947 of the Italian Civil Code, a tortious action for damages arising from an infringement of competition law is therefore time-barred five years from the day on which the claimant acquires, or ought to have reasonably acquired, proper knowledge of the infringement and/or damage suffered. A party who asserts that the limitation period has expired must prove the moment at which the claimant obtained (or ought reasonably to have obtained) knowledge of the infringement and/or damage suffered. According to the general principles stated by the Italian Supreme Court, it might be presumed that, in practice, the injured party acquires (or could have acquired using ordinary diligence) knowledge once a finding of infringement has been issued by a competition authority. 2
If the action is based on a breach of contract, the applicable limitation period is 10 years from the date of the breach.
Following the recent entrance into force of Italian Decree No. 1/2012, civil claims for damages resulting from violations of Italian competition law (Article 33 of the Competition Act) or from violations of EU competition law must be filed before the Specialized Sections of the competent court or first instance tribunal having territorial jurisdiction.
Any appeal must be raised before the Specialized Sections of the competent Court of Appeal having territorial jurisdictions and may challenge either the law or the facts identified in the judgment of the first instance court.
Court of Appeal judgments may be challenged before the Corte di Cassazione, but only on points of law or where it is alleged that a breach of the rules concerning jurisdiction has occurred.
Availability of class actions for infringement of competition law and/or damages available in Italy
A class action law was enacted in Italy on January 1, 2010 (Art. 49 of Law no. 99 of July 23, 2009) and, in 2012, was amended so as to expand its scope.
Claims may be brought by consumers or the end-user (defined as any individual acting for purposes falling outside his trade, business or profession) in relation to infringements committed from August 15, 2009 onward. The mechanism is “opt-in” so other consumers may elect to join a class action and so consent expressly to their rights being determined as part of those proceedings. Consumers that do not decide to join the class are not bound by the outcome of the action.
As amended, the law allows any consumer or user group seeking damages or declaratory relief to initiate a class action in respect of infringements or damage that are “homogeneous” as between the group (the original text of the statute required actions brought in a calls to be “identical,” a more difficult standard to meet). Consumers who have bought goods related to the same cartel (regardless of whether from the same cartel member) ought to be permitted to bring their claims as a class under these provisions.
Conduct of proceedings and costs
Burden of proof
The claimant must prove the infringement or unlawful conduct, the amount of damage actually suffered and that damage suffered was caused by that infringement or unlawful conduct. In order to establish causation, the claimant must show that “but for” the infringement, the damage suffered would not have occurred.
A decision by a national competition authority will be accepted as privileged evidence that an infringement has occurred 3 and, as noted above, a decision by the European Commission will be considered binding proof of liability by Italian courts.
As a general rule, the claimant is required to prove that the unlawful conduct caused the actual damage. However, in practice, the courts may sometimes accept that the causal nexus is adequately proved based on common business experience and so the court might be prepared to assume that unlawful overcharges were imposed as a result of cartel activity. This presumptive approach is often taken in respect of claims where the nature of the breach is such that the causal nexus between breach and damage cannot be proved – or would be extremely difficult to prove – in a rigorous way. Competition claims are considered to fall into this category. For example, the Italian Supreme Court has indicated that, in cases where a decision of the Italian Competition Authority has identified a restrictive agreement contrary to competition law, the causal nexus between that agreement and resulting damages may be presumed. It is then open to the defendant to provide evidence to rebut this presumption.
Joint and several liability of cartel participants
Liability for breach of competition law is considered a joint and several liability under Italian law and Italian courts are able to apportion liability to pay damages as between defendants according to its assessment of their fault for the damage caused.
In theory, the claimant is entitled to recover all damages from one or some members of a cartel and so need not issue the claim against all of those deemed responsible for the infringement. Defendants are able to join others to a claim or to seek contribution from them.
Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
Italian law does not provide for formal disclosure. The parties to an action must produce the documents upon which they rely and file these with the court but there is no obligation to disclose documents (and other information) that is adverse to the parties’ respective positions.
The court may determine to appoint its own expert in order to advise it on economic/accounting issues (the costs of such expert to be paid, along with all other costs, by the losing party to the trial). However, the parties must apply to the court for permission to adduce further evidence such as, for example, witness testimonies and expert evidence.
In certain limited cases and under specific conditions, the court may order the parties, or even third parties, to disclose specific documents, either on the application of the parties or on its own initiative. Such orders may include legal advice given by in-house lawyers but not by external legal advisers. A party applying for such disclosure will need to: (i) describe the documents requested in as much detail as possible so as to show that the claimant is not “fishing”; and (ii) confirm that the documents requested are not in its possession or otherwise available to it.
Average length of time from issue of claim to judgment in Italy
The average length of time from the issue of a claim to first instance judgment is between two and four years. Actual duration may depend on many factors, including:
i) the number of defendants involved in the litigation (for claims relating to cartels, a large number of parties are normally joined into the litigation and this will lengthen proceedings); and
ii) the complexity of the evidential phase (which, for example, may require the appointment of an accounting expert to quantify the damages suffered by the claimant)
Average cost from issue of claim to judgment in Italy
Many factors come into play that affect the costs of litigating this type of claim, including: (i) the quantum claimed; (ii) the number of parties involved; (iii) the number of related civil claims to be dealt with and their locations; (iv) the kind of fact-finding evidence that the injured party may introduce and (v) the overall complexity of the case. A rough estimate to defend a relatively straightforward claim to first instance judgment would be approximately EUR100,000.
The court will also decide which of the parties shall bear the costs of the proceedings. Generally, in accordance with Article 91 of the Italian Procedural Civil Code, all or part of the costs incurred will be paid by the losing party.
As a general rule, any claim can be assigned to a third party but, to our knowledge, this has not yet occurred in Italy in relation to private competition enforcement. It is also permissible for lawyers to agree to act on a contingency fee basis.
Alternative methods of dispute resolution
Competition disputes can be submitted to arbitration under Italian law. Parties may alternatively volunteer to go through mediation with the aim of achieving settlement. Under Italian law, the parties are not generally obliged to opt for mediation, except for some specified matters that are not relevant in this context.
Availability of damages and quantification
Only compensatory, rather than punitive, damages may be awarded in respect of a competition law action brought in Italy. The defendant will be liable only in relation to those damages that can be proven as the immediate and direct consequence of its conduct.
The constituent elements of the damage are those provided by the Italian Civil Code (and include loss of profits).
To date, a limited number of private competition litigation cases have been dealt with by the ordinary courts in Italy. These cases indicate that a court will determine the difference between the situation that the injured party is in and the situation that it would have been in had an infringing action not occurred. The court will calculate this on a hypothetical basis by comparing profits realized by the injured party before and after the infringing action (provided the two reference periods offer the same comparable characteristics) or by comparing the profits realized after the infringing action and those realized by another similar but unaffected company.
Since proving the quantum of damage can be difficult and complex, parties often file ex parte technical reports on central issues concerning the economic analysis of the issue. As noted above, the court may also appoint a technical expert to assist it on economic issues, including the quantification of damages.
Punitive and exemplary damages
As noted above, neither punitive nor exemplary damages are available in Italy.
Availability of interim or final injunctions in respect of an alleged competition law infringement
In principle, it is possible to obtain an interim or final injunction in relation to a competition law infringement.
An infringement of competition law not only implies damage to the competitiveness of a market but may also cause specific prejudice to a single entity and/or consumer. Consumers can therefore seek protection of their interests by asking for an interim injunction aimed at obtaining an order for the immediate cessation of the unlawful conduct carried out by the author of the infringement. Such an interim order will be granted provided that the claimant can prove the existence of his rights (i.e., right to claim) and that irreparable prejudice is likely to be suffered if the unlawful conduct persists.
Case law on injunctions awarded on this basis in the context of competition law is not developed, but we expect that such injunctions will rarely be granted.
The number of civil claims in Italy is likely to continue to grow. At present, however, the number of actions that have actually been brought is still relatively small.
1 Judgment no. 2305 of February 2, 2007.
2 In that respect, see Judgment no. 27527 of December 10, 2013; B. Nascimbene, F. Rossi Dal Pozzo, La prescrizione delle azioni risarcitorio antitrust alla luce dei principi della certezza del diritto, di equivalenza ed effettività, in Il private enforcement delle norme sulla concorrenza, Milan, Italy, 2009, page 123 ff.
3 See the order of the Supreme Court no. 5327 of March 4, 2013, according to which, as the decision amounts to a privileged evidence in favor of the damaged parties, the company responsible for the infringement is not allowed to ask the court a mere re-assessment of the same facts already analyzed by the Italian Competition Authority, provided, of course, that the party at hand actually participated to the administrative proceedings which gave rise to the decision.