Private Antitrust Damages Actions – EU Directive Now Effective In Italy

New rules in force as of February 3, 2017

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.

Although the Directive does not apply to collective recovery actions, the new regime set forth by Legislative Decree no. 3/2017 does apply also to class actions resulting from the infringement of competition law.

Private antitrust damages suits are reshaped

The main changes brought into the Italian legal system by Legislative Decree no. 3/2017 are:

• a new regime of evidence discovery orders applicable to private antitrust damages actions, including class actions;
• specific rules 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 authority;
• the binding nature of a final decision of the Italian Competition Authority finding that an infringement occurred; the binding effect encompasses 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); however, it does not apply to the causal link and existence of damage; 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;
• clarified rules on time limitation;
• special rules pertaining to the distribution of the burden of proof, including the regime of the passing on defense.

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 claims; among those, arbitration proceedings are actually also contemplated in the Italian implementation act (while there was no reference to them in the Directive).

Provisions are also set to govern the effects of partial consensual settlements on subsequent actions for damages.

Parallel application of EU and national competion law

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. 

Livia OGLIO, Partner at STUDIO LEGALE SUTTI