Antitrust litigation has developed gradually in Italy. Following the adoption of the Italian Law No 287/1990 (hereinafter, the “Competition Act”), the private enforcement proceedings brought before civil courts were limited; in the following years, litigation has steadily grown, driven, firstly, by Court of Justice rulings and, secondly, by the introduction of the Directive 2014/104/EU (hereinafter, the “Damages Directive”). The latter, implemented by Legislative Decree No 3 of 2017 (hereinafter, the “Decree”), certainly played an important role in increasing the number of lawsuits in Italy; through the Directive and the implementing Decree, the legal subject matter has been clarified and victims of antitrust infringement have been made more aware of their rights to compensation for damages.

As of today, there are several ongoing court cases, most of which are follow-on actions. There are at least four infringement decisions, each having given rise to a conspicuous group of follow-on actions: trucks cartel (AT.39824), cement cartel (I793), corrugated cardboard (I805), and elevators and escalators (AT.38823). It is worth mentioning that a considerable portion of cartel damages cases have been settled.

A study conducted by the University of Milan in 2019, assuming as observation period the years from 2013 to 2018, estimated that more than one hundred judgments were issued by the first and second instance Courts in Milan (of which 3/4 of the cases were follow-on actions and the remaining 1/4 were standalone actions). The first-instance judgments saw the substantial acceptance of the claim in 49% of cases; with regard to the rejections, a very large majority of them were issued for insufficient evidence (91% of cases), while the remaining rejection decisions were determined by procedural aspects. Among the second-instance judgments, it is worth noting that the appeal was upheld in 33% of the cases. Interestingly, 1/3 of the first instance cases concerned restrictive agreements and 2/3 were about abuse of dominant position.

The introduction of the Decree in 2017 which includes both substantial and procedural provisions, offered a comprehensive legal framework for actions commenced by a victim of competition law. To provide more detail, the Decree introduced rules with reference to the burden of proof, access to evidence, standing, and definition of damages. Implementing the Directive, the Italian legislator chose to ensure the consistent application of the rules, by reducing the number of competent courts that now number just three – Milan, Rome, and Naples.

Additionally, in 2019, a new class-action framework was introduced, which should further boost private enforcement cases in Italy. Indeed, this novel class-action system extends its reach to not just consumers but also businesses, either individually or through an association.

Another development to be monitored is represented by the bundling of claims. Italian law has always allowed claims to be bundled from different claimants in one lawsuit provided that these claims have the same causa petendi (ie, the cause of the claims). This is normally the case with cartel damages claims, which stem from a single unlawful behaviour. Where the causa petendi is the same, it is possible to file either a joint action under Article 103 of the Italian Code of Civil Procedure or a class action under the recently introduced Article 840-bis of the Italian Code of Civil Procedure. Both the uncertainty of the new statute and the specific difficulties of a collective claim are expected to result in a parallel stream of the two kinds of damages actions brought by groupings of plaintiffs, in cartel cases especially, in the years to come.

In connection with the harsh acceleration seen in recent years, litigation funds are entering the market, making private enforcement proceedings, including class actions, more appealing (see 10.1 Litigation Funding).

The legal basis for private enforcement actions is established by statute in Italy and the legal framework includes:

• general civil law principles concerning tort liability and ordinary tort actions as set forth in Article 2043 of the Italian Civil Code, and pursuant to the general procedural rules laid down in the Italian Code of Civil Procedure;
• Article 33(2) of the Competition Act, which provides that claims for damages owing to infringements of competition rules can be brought before civil courts; and
• the Decree, which implemented the Damages Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the EU and provides specific rules concerning claims for damages for infringements of EU and national competition law.

Private actions are available in relation to any breach of the EU or national competition law (ie, cartels or abuses of dominant positions), regardless of the existence of a prior decision by a competition authority ascertaining the relevant infringement. Therefore, both follow-on and standalone claims are available under Italian law and in the latter case, the claims are mainly constructed as a tort action pursuant to Article 2043 of the Italian Civil Code.

Pursuant to Article 18 of the Decree, the competence to decide claims for damages for breach of competition law belongs to the corporate-specialised (ie, “Sezione Imprese”) sections of the Tribunals of Milan, Rome, and Naples, for first-instance proceedings, and to the relevant courts of appeal (ie, Milan, Rome, and Naples), for second-instance proceedings. More in detail:

• the Milan courts have jurisdiction over judicial districts of Brescia, Milan, Genoa, Turin, Trieste, Venice, Trento, and Bolzano;
• the Rome courts have jurisdiction over judicial districts of Ancona, Firenze, L’Aquila, Perugia, Rome, Cagliari, and Sassari; and
• the Napoli courts have jurisdiction over judicial districts of Campobasso, Naples, Salerno, Bari, Lecce, Taranto, Potenza, Caltanissetta, Catania, Catanzaro, Messina, Palermo, and Reggio Calabria.

All cases are mandatorily allocated among these specialised sections, therefore, as a general rule, if the claim has not been proposed before the tribunal that has territorial jurisdiction, both the judge (ex officio) and the defendant may plead the lack of territorial jurisdiction. In such a case, the proceedings are to be terminated and the parties shall resume the proceedings before the competent court within a prescribed term.

Under Article 7(1) of the Decree, the decisions of the Italian Competition Authority (ICA) are binding for the national courts provided that the decision finding a competition law infringement is final, meaning that the decision can no longer be appealed or challenged before a court (ie, before Tribunale Regionale Amministrativo (TAR), in first instance, and Council of State, in appeal).

The binding effects cover the factual analysis of the infringement, the nature of the violation, and its substantive, personal, temporal, and territorial scope.

Differently from the ICA and EC’s decisions, the decisions of national competition authorities (NCAs) in other EU member states are not binding on the Italian national courts (see Article 7(2) of the Decree) and may only be considered as evidence that an infringement has occurred and may be assessed, during the course of the proceedings, together with other evidence adduced by the parties.

The ICA may also play a role within the damages action. Pursuant to Article 4(7) of the Decree, the ICA may intervene in the judicial proceedings when it intends to submit observations to the court on the proportionality of the disclosure request. Additionally, under Article 14(3) of the same Decree, the court may ask the assistance of the ICA in determining the amount of the damages to be awarded to the victims of the infringement.

The general rule under Article 2697 of the Italian Civil Code provides that the claimant must prove the facts alleged as the grounds of the actioned rights, while the defendant has the burden to prove the facts alleged as the grounds for contesting the claimant’s allegations or for its defence. Additionally, as a general rule, claimants seeking damages arising from tort should prove the conduct (ie, unlawful act), the harm, and the causal link between the conduct and the harm.

In quite simplistic terms, the standard of proof applicable may be said to be the preponderance of evidence, although courts’ decisions on the matter are referred to proof of causation only and the general principle set forth by the law is that the judge assesses evidence (unless specific rules, eg, presumptions, are applicable) based on his or her “prudent assessment” (free conviction principle).

However, with reference to the antitrust private enforcement proceedings, the Decree sets forth certain provisions that derogate from the above-mentioned general rules. Article 7(1) of the Decree provides that the ICA’s final decisions ascertaining the infringement, which can no longer be challenged before the competent Italian courts, are binding for the judge with reference to the existence of the infringement as well as to its material, temporal, and territorial scope. This means that the existence of the infringement is deemed as proven and cannot be challenged in the civil proceedings whereas the existence of the harm and the causation are not given as proved and must be assessed during the civil proceedings. Only the existence of the harm caused by a cartel is presumed unless the infringer proves otherwise (see Article 14(2)); therefore, in the case of a private enforcement proceeding arising from a cartel, the claimant shall prove the extent of the damage.

The Decree also includes provisions with reference to the burden of proof for a “pass-on defence”.

• Article 11(1) provides that defendants who invoke the fact that the claimant has transferred all or part of the overcharge resulting from the violation of the competition law must prove that the overcharge was passed-on.
• Article 12(2) provides a rebuttable presumption concerning the passing on of the overcharge to indirect purchasers, providing that they can prove that:
1. the defendant committed an infringement of competition law;
2. the competition law infringement has resulted in an overcharge for the direct purchaser; and
3. the indirect purchaser has acquired the goods or the services that were the objects of the infringement or has purchased goods or services derived from or containing them.

As set forth in Article 10 of the Decree, a damage claim for infringement of competition law may be sought by anyone who has been harmed by the infringement, regardless of whether the claimant is a direct or indirect purchaser of the infringer. The indirect purchaser can claim compensation for damages to the extent that the same has been passed on by the direct purchaser.

The overall duration of a proceeding is strongly affected by the degree of complexity of the evidentiary phase dedicated to the quantification of damages (whereby one or more independent experts are appointed by the judge and proceed jointly with the economic experts appointed by the parties, to assess the amount of damages).

A first-instance proceeding generally needs three to four years to come to the final decision. However, several factors may impact the length of the trial (eg, disputes on the scope of leniency applications and related documents, and on the scope and modality of protection of confidentiality) and no official data is available on the duration of antitrust damages actions.

The Decree does not provide for an automatic suspension system in case a parallel proceeding is opened by the ICA.

However, as a general rule, the parties may request the judge to suspend the judgment for justified reasons (see Article 296 of the Italian Code of Civil Procedure).

Additionally, according to Article 4(8) of the Decree, the judge may suspend the judgment until the ICA’s final decision is released. Moreover, pursuant to Article 15(2) of the Decree, the suspension may follow the parties’ request in the event that the disputing parties are attempting a conciliation. This suspension may last up to two years and if the attempt at conciliation is unsuccessful, the proceedings must be resumed within 30 days from the failure of the attempt.

Article 1 of the Decree expressly states that it also applies to class-action proceedings. In this respect, it is worth noting, as far as private antitrust damage proceedings are concerned, that the current Italian legal framework with reference to class actions includes the following provisions.

• Article 140-bis of the Italian Consumer Code, applicable to class action proceedings for violations that occurred before the entry into force of Law No 31/2019, ie, before 19 May 2021:
1. This class action has been scarcely used – it is a remedy actionable only by consumers, through an opt-in mechanism. Only two antitrust class actions were brought pursuant to this framework, both being follow-on cases – the first against some ferry companies for an alleged cartel on passenger routes between Northern Italy and Sardinia (Altroconsumo v Moby et al), and the second against some financial companies of the major automobile groups for an alleged cartel in the market for the sale of automobiles through financing (Altroconsumo v Volkswagen Bank et al). Both actions were dropped following the final annulment of the AGCM’s (ie, the Italian Competition Authority) decisions finding the violation.
• Articles 840-bis – 840-sexiesdecies of the Italian Code of Civil Procedure introduced by Law No 31/2019 and applicable for violations occurred as of 19 May 2021, ie, after the entrance into force of Law No 31/2019:
1. This class action is general in scope and, in comparison with the previous discipline:

1. can be brought not only in the interest of consumers, but also in the interest of any other victim of an antitrust violation;
2. in addition to early opt-in, adherence is allowed even after the judgment finding the violation and ordering the respondent company to pay damages; and
3. provides that the court shall also order the defendant to pay directly to the common representative of the adherents, by way of compensation, an amount determined in accordance with the number of members of the class on a progressive basis.
2. The proceeding includes, in addition to the two stages related, respectively, to the admissibility and the merits of the case, a third stage devoted to the examination of the positions of individual members.

It is worth emphasising that the new class action (see Article 840-bis et seq of the Italian Code of Civil Procedure) can be brought by “anyone” who has suffered damage as a result of an infringement of competition law (consumers, businesses, professionals, and public bodies).

A class action pursuant to Article 140-bis of the Italian Consumer Code can be brought exclusively by one or more consumers, also through a mandate to an association or committee. The new class action pursuant to Article 840-bis et seq of the Italian Code of Civil Procedure can be brought personally by each component of the class (ie, any victim, not any more limited to consumers) or by a non-profit organisation or association representing the interests of the victims of the violation. Such organisation must be registered in the public list established at the Ministry of Justice.

A class action brought pursuant to both regimes might be declared inadmissible under the following circumstances:

• when it is manifestly unfounded;
• when there is a conflict of interest between the plaintiff and the defendant;
• when the rights asserted by the plaintiff are not homogeneous with the rights of the other class members; or
• when the plaintiff does not appear to be able to adequately represent and pursue the interests of the class.

Otherwise, in both regimes, if the action is declared admissible, the court defines the class, identifying the characteristics of the individual rights and specifying the criteria whereby the individuals are or are not included in the class. The judge then fixes a mandatory term of not less than 60 days and not more than 150 days to join the action. As said, in addition to this, the new class action allows any victim of the violation to join the action even after the publication of the judgment granting the claimant’s application.

In general, in accordance with Article 185 of the Italian Code of Civil Procedure, the court may schedule a hearing, at which the parties have to personally appear, in an effort to settle the dispute. Upon a specific and joint request of the parties, the court is obliged to fix such a hearing.

A specific provision is also provided for in Article 840-bis of the Italian Code of Civil Procedure, for the case for which, as a consequence of settlement agreements amongst the parties, there remains no claimant in the proceedings – the court shall then assign a term of between 60 and 90 days to the adherents to resume the case. The resumption must be made by at least one adherent; otherwise, the proceedings are declared extinct.

The Italian framework does not provide for strike-out and/or summary judgments. Nevertheless, the defendant may raise a preliminary issue, such as a lack of jurisdiction or lack of standing aimed at asking the court to decide on the preliminary issues only, without evaluation of the merits.

When the latter request is granted, a decision may be obtained in a much shorter timeframe.

As mentioned above, Article 18 provides rules on jurisdiction for antitrust damages claims.

Additionally, as a general rule, the Italian jurisdiction exists when the defendant is domiciled or resident in Italy as well as in the concurrent fora set out at an EU level by Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters when the parties to the proceedings are domiciliated in different countries (so-called Regulation Bruxelles I-bis).

With reference to the applicable law, it should be noted that Article 6(2) of Regulation (CE) No 864/2007 on the law applicable to non-contractual obligations (so-called Regulation Rome II) provides, with reference to unfair competition and acts restricting free competition, that:

• in case of non-contractual obligations arising out of a restriction of competition, the applicable law shall be the law of the country where the market is affected;
• in case the market is affected in more than one country, the claimant may base the claim on the law of the competent court for the domicile of the defendant; and
• if the claimant sues more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially also affects the market in the member state of that court.

The limitation period in relation to damages for violation of competition law is five years. The Decree specifies that the limitation period should not begin to run before the infringement ceases and before the claimant knows, or can reasonably be expected to know:

• the behaviour and the fact that such behaviour constitutes an infringement;
• the fact that such an infringement caused the claimant harm; and
• the identity of the infringer.

In this respect, the Tribunal of Milan ruled (Decision No 3914 of 15 May 2023) that in the case of a cartel, the victim is aware of the infringement from the day of the publication of the summary of the final decision, whereas in the case of abuse of dominant position, the victim could be aware of the relevant elements as early as the day of the opening of the investigation.

The limitation period may be interrupted if a lawsuit, a notice for performance, or an arbitration notice is served on the defendant (see Article 2943 of the Italian Civil Code) as well as by recognition of the claim by the debtor (see Article 2944 of the Italian Civil Code). If the limitation period is interrupted, the time that has run is not counted and the limitation period begins to run anew from the last day of the interruption (see Article 2945 of the Italian Civil Code).

However, the limitation period is suspended if the ICA opens an investigation in respect of an infringement to which the action for damages is related. The suspension continues for and until one year after the infringement decision has become final (ie, no longer challengeable) or after the proceedings are otherwise terminated (see Article 8(2) of the Decree).

The Decree introduces a disclosure procedure aimed at limiting the information asymmetry between the claimant and the infringer. In this respect, Article 3(1) of the Decree provides that, upon a reasoned request by a party, the judge may order the counterparty or a third party to disclose evidence in their possession. The judge evaluates the proportionality of the request for disclosure of documents, taking into consideration:

• the extent to which the claim is supported by available facts and evidence justifying the request;
• the scope and cost of disclosure; and
• whether the evidence to be disclosed contains any confidential information.

The judge may adopt measures to protect the confidentiality of the documents, such as the possibility of redacting sensitive elements in documents, conducting hearings in camera, restricting the persons allowed to see the evidence, and instructing experts to produce summaries of the information in an aggregated or otherwise non-confidential form.

Article 4 of the Decree provides that also documents included in the ICA’s file may be the object of disclosure. In such case, the judge shall order the disclosure of evidence, provided that:

• the parties or third parties are not in a position to produce such evidence; and
• the request is proportional considering whether:
1. it has been formulated specifically with regard to the subject, nature, and content of the document submitted to the ICA;
2. the request refers to an action for damages; and
3. there is need to safeguard the effectiveness of antitrust public enforcement.

It is worth noting that, according to Article 4(4) of the Decree, some categories of evidence, such as documents prepared by the ICA and addressed to the parties and settlement applications that have been withdrawn, can be disclosed only after the closure of the ICA’s investigation.

The judge may impose a fine to the party or third party who refuses to comply with the order to produce evidence or destroys relevant evidence. The fine amounts to a minimum of EUR15,000 and a maximum of EUR150,000.

Communications between lawyers of the parties and their clients can be withheld from disclosure (see Article 3.6 of the Decree). However, communications with in-house lawyers are not covered by the legal privilege (see Consiglio di Stato, 24 June 2010, No 4016; Court of Justice, 14 September 2010, Case C-550/07 P Akzo Nobel Chemicals Ltd v Commission).

Pursuant to Article 4(5) of the Decree, the judge cannot order a party or a third party to disclose any evidence relating to leniency statements and/or settlement agreements. However, the claimant may submit a reasoned request that the judge may access such evidence for the sole purpose of ensuring that their content corresponds to the definitions of leniency and settlement agreements as provided for, correspondingly, in Article 2(1) (n) and (p) of the Decree.

According to the general rules of Italian law, witnesses of fact are generally admissible, except for contracts. Witness evidence is possible upon a specific request to the judge; in such a request, the party shall indicate the name of the witness as well as the specific facts on which the witness will be questioned during the hearing. In turn, the other party shall request to appoint his/her own witness to provide contrary evidence. Questioning of witnesses is conducted by the judge; questions are generally limited to the specific lists submitted by the parties, or to requests for clarifications thereof. Cross examination is not allowed.

The witness is required to appear at a dedicated hearing; if he/she decides not to appear at the witness hearing, the judge may order a second notice to be served in order to oblige the witness to appear at the hearing. The witness evidence is usually given orally during the relevant hearing and minutes of the evidence are kept; in specific cases, as set forth in Article 257-bis of the Italian Code of Civil Procedure, the witness evidence may be given in writing provided that both parties agree.

In private enforcement proceedings, it is customary to rely on expert witnesses. Usually, the claimant submits, along with the writ of summons, written expert evidence in support of the quantification of the damage suffered, whereas the defendant shall submit rebuttal expert evidence to challenge the claimant’s quantification of damages and in support of its pass-on defence.

Damages quantification is then based on the opinion of a court-appointed expert witness (Article 61 of the Italian Civil Code provides that the judge may appoint an expert witness; such an appointment may follow a specific request submitted by one or both of the parties or may be made ex officio by the judge). When a court expert witness is appointed, both parties are entitled to appoint their own expert witnesses. Usually, the court-appointed expert witness is requested to answer specific technical questions in writing. The expert then drafts a first report answering the technical questions, which is shared with the parties’ expert witnesses who shall propose amendments to it. Upon the finalising of the draft, the court-appointed expert submits the report with the court. The final judgment is rendered taking into account the court-appointed expert’s final report, which, however, is not binding upon the court.

Article 14(1) of the Decree provides that damages are assessed according to the general provision of the Italian Civil Code under Articles 1223, 1226, and 1227 regulating the calculation of damages arising from civil liability.

As set out in Article 1 of the Decree, and according to general principles of Italian Civil Law, the compensation may include actual loss (damnum emergens), loss of profit (lucrum cessans), and interest, and “shall not determine over-compensations”.

Italian law does not provide for the concept of exemplary or punitive damages. They have traditionally been considered, by courts and authors, as contrary to public policy. Punitive damages, therefore, are not available in domestic antitrust litigation.

However, it should be noted that the Supreme Court has recently stated that punitive damages may be awarded in Italy in case of enforcement of a foreign judgment awarding punitive damages (Supreme Court, 5 July 2017, No 16601). According to the Supreme Court, in such a case, punitive damages may not be contrary to the Italian public order provided that the judgment is based on precisely legal provision establishing the cases in which such damages may be awarded, and the awardable amounts can be foreseeable.

According to the above principles, the Decree transposes the Directive’s rule on passing-on of overcharges (by which is meant the difference between the price of what was actually paid and what would otherwise have been paid in the absence of the infringement) with a view to avoiding overcompensation. Article 10(2) of the Decree provides that the actual compensation awarded to a certain level of the supply chain shall not exceed the overcharge harm suffered at that level. However, the parties that have passed-on the overcharge are entitled to claim the loss of profit incurred by them as a consequence of having passed-on to their customers, either in whole or in part, the overcharge (ie, the net loss of profit determined by the decrease in the volume of sales connected to the increase of prices).

The quantification of harm implies a complex analysis and, as mentioned, parties and the courts appoint economic consultants as experts for such purpose.

Additionally, Article 14(3) of the Decree allows judges to ask ICA to assist the court in quantifying the damages.

According to Article 11 of the Decree, which implemented Article 13 of the Directive, the defendant is entitled to invoke as a defence the circumstance that the claimant has passed on the whole or part of the overcharge resulting from the infringement of competition law and apparently suffered by the claimant. In such a case, the burden of proving that the overcharge was passed on is on the defendant.

According to Italian law, in the case of tort liability, interest on damages accrues from the date on which the harmful event occurred to the date on which payment is made. As far as private enforcement proceedings are concerned, this means that payable legal interest covers the period of infringement of competition law as well as the subsequent period in which the action for damages is brought. Therefore, the total interest includes both pre-judgment and post-judgment interests.

The legal rate of the interest, pursuant to Article 1284 of the Italian Civil Code, is determined on an annual basis by the Ministry of Economics and Finance taking into account the yields of the annual government bonds and on the inflation rate of the preceding year. Currently, as of 1 January 2023, the rate of interest is determined at 5% by Decree of the Ministry of Economics and Finance.

Claimants are, however, allowed to prove that interests at the legal rate do not represent full compensation. Interest assessment is generally included in the court-appointed expert’s mandate. Weighted average cost of capital (WACC) rates are normally considered in the assessment.

As a general rule, according to Article 2055 of the Italian Civil Code, the parties which have jointly caused harm are held jointly liable; each of those parties is bound to compensate for the harm in full, and the injured party has the right to require full compensation from any of them until it has been fully compensated.

However, the Decree provides several derogations to the principle of full joint and several liability of the undertakings which took part in the infringement of the competition law.

• Pursuant to Article 9(1)(2) of the Decree, if the infringer is a small or medium-sized enterprise (so-called SME, as defined in Commission Recommendation 2003/361/EC) , the infringer is liable only vis-à-vis its own direct and indirect purchasers, provided that (i) its market share in the relevant market was below 5% at any time during the infringement of competition law, and (ii) the application of the rules of joint and several liability would irretrievably jeopardise its economic viability and cause its assets to lose all their value.
• Irrespective of the fulfilment of the above-mentioned conditions, SMEs are also jointly and severally liable towards the damaged parties, other than direct and indirect purchasers, when:
1. the SME has led the infringement or coerced other undertakings to participate therein;
2. the SME has previously been found to have committed other infringement of competition law; and
3. the injured parties cannot obtain full damages from the other undertakings involved in the same infringement of competition law.
• Article 9(3) of the Decree provides that the beneficiaries of a leniency programme are jointly and severally liable towards their direct or indirect purchasers or suppliers and also towards other injured parties, only in the event that the latter cannot obtain full compensation for the damage from other undertakings involved in the same infringement of competition law.
• Article 16 of the Decree states that following a settlement, co-infringers who did not take part in the settlement are not permitted to recover contributions for the remaining claim from the settling co-infringer. Additionally, if a co-infringer who did not participate in the settlement is insolvent, the damaged party may seek damages from the co-infringers who participated in the settlement agreement unless the parties to the agreement expressly excluded such possibility.

Article 2055(2) of the Italian Civil Code provides that a person who has compensated the damaged party has the right to recourse against each of the other co-debtors in proportion to the fault and to the consequences arising therefrom. Such a general principle also applies to damages awarded for infringements of competition law as set forth in Article 16(4) of the Decree which provides, in this respect, the sole exception of co-infringers who did not take part in a consensual settlement.

A contribution proceeding (see Article 1229 of the Italian Civil Code) may be brought against the jointly liable co-debtors either by suing them in the same proceedings commenced by the damaged party or by suing them after the conclusion of the private enforcement proceedings upon the payment of the full damage or of a share of the damages that exceeds the proportion of liability.

In the first scenario, pursuant to Article 106 of the Italian Code of Civil Procedure, the defendant may request the court to be allowed to sue a third party involved in the infringement of competition law.

Such a request is generally awarded by courts, on the basis of principles of concentration of proceedings and avoidance of costly procedural duplications. Cartels’ follow-on actions therefore typically consist of multi-party proceedings, with all the consequences in terms of longer duration and higher costs.

First-instance decisions awarding damages are immediately enforceable, including pending appeal proceedings.

Under general rules, parties having been awarded damages may therefore seek to obtain coercive payment by means of obtaining an injunction measure, inaudita altera parte. Pursuant to Article 633 of the Italian Code of Civil Procedure, a creditor of a liquid sum of money or a specified quantity of fungible things, may apply to the competent court for an injunction, which shall be issued within thirty days. The injunction procedure is a special summary procedure for those who hold liquid, certain, and collectible claims, based on written proof, which is based solely on the allegations of the creditor. Indeed, the injunction is a summary and partial order, and full knowledge is referred to the potential subsequent opposition phase.

Within forty days from the issuance of the injunction, the defendant may file an opposition. In this case, a second and different procedural phase will be opened, with full cognition, in which the plaintiff assumes the (formal) role of defendant, and the person subject to the injunction assumes the role of plaintiff. During this phase, the court evaluates the merits of the claim in relation to the validity of the credit. Otherwise, in the absence of opposition, enforcement will be carried out.

Italian Civil Procedure rules also provide for the possibility for a claimant to obtain interim measures provided it can be shown that the claim is (prima facie) valid (the so-called fumus boni iuris) and that there is a substantial risk of harm (the so-called periculum in mora). Injunctions can be granted, with or without notice to the other counterparties, in cases of proven urgency and based on a summary procedure.

When the interim measure request is based on antitrust infringement (eg, when the claimant seeks an order to resume supplies in case of allegedly abusive refusals to deal) courts normally deny the request inaudita altera parte, and schedule a hearing and possibly terms to the defendant for filing a defensive brief of appearance.

The decision is normally rendered after the hearing. In such cases the proceeding is generally concluded in some weeks from the filing of the request, although their duration may be longer when, eg, further terms for exchange of briefs are disposed, or technical matters require the appointment of an expert.

Article 15(2) of the Decree expressly mentions alternative dispute resolution methods with reference to the suspension of the proceedings. In this respect, reference is made to the general provision of Italian law in relation to:

• arbitration;
• mediation; and
• assisted negotiation,

as set forth in Article 2(1) (s) of the Decree.

The Italian legal framework distinguishes between two types of arbitration proceedings.

• Ritual arbitration (ie, regular) – when the decision taken by the professional at the conclusion of the arbitration proceedings has the same effect of a judgment – ie, it will be directly enforceable (see Articles 806 et seq of the Italian Code of Civil Procedure).
• Irritual arbitration (ie, irregular) – when a decision has the same effect of a negotiation between the parties.

However, the arbitration proceedings are mandatory if the parties of the dispute have inserted an arbitration clause in the contract that originated the dispute. With reference to the private enforcement proceedings, it is worth noting that Article 16(5) of the Decree expressly provides that the same Article 16 on the effects of the settlement also applies to arbitration decisions. Case law in fact undisputedly allows arbitration in antitrust proceedings, also upholding the lack of jurisdiction in favour of arbitration chambers (eg, Tribunal of Milan, No 6374 [2021]).

Additionally, as noted, the Decree mentions the mediation procedure, as set forth in the Legislative Decree of 4 March 2010, No 28, and the assisted negotiation procedure, regulated by Law Decree No 132/2014. Both provisions allow for a list of matters for which the mediation/negotiation attempt is mandatory before a case can be brought before a court. Neither of the two lists include matters related to tort liability, and, therefore, an attempt at mediation/negotiation is not mandatory prior to actions for damages for breach of competition law.

Italian law does not forbid the possibility of using third-party funding, but at the same time does not provide any specific rule on the matter. The only provision relating to funding is set out in Article 140-septies of the Italian Consumer Code, which establishes, with reference to class actions, that any financing by third parties must be indicated in the writ of summons to assess any conflicts with the defendant’s position. Given the lack of provisions in relation to the third-party funding mechanism, contracts aimed at it will be governed by the general principles of Italian contract law.

In any case, litigation funding which is typical to common law systems, is also spreading within Italy. In general, financial systems can operate in one of the following ways:

• the fund finances the action of injured parties which take part in the action personally – only if damages are awarded will the fund retain a percentage of the amount awarded as compensation; and
• the fund acts personally, after having “purchased” the injured party’s claim against the infringer.

Under Italian law, costs follow the outcome of the proceedings. Pursuant to Article 91 of the Italian Code of Civil Procedure, the losing party is ordered by the judge to refund the costs borne by the counterparty. There are, however, exceptions to this general principle – the judge may compensate the costs between the parties in the following cases:

• the costs are excessive or superfluous;
• the winning party has breached duties of loyalty and probity in the proceedings;
• both parties have partially lost the proceedings; and
• the questions of the case were exceptionally new or there was an over-ruling.

The costs include the costs incurred by the parties for the work of their lawyers, statutory fees (eg, VAT and court fees), and any costs related to the proceedings such as the costs of appointing a court expert witness. In the event of non-payment of costs, the other party is entitled to institute enforcement proceedings; however, costs may be challenged in the appeal proceedings.

Decisions at first instance rendered by the specialised Tribunals of Milan, Rome, and Naples may be appealed before the competent court of appeal (ie, Court of Appeal of Milan, Rome, or Naples), under the general provisions of the Italian Code of Civil Procedure. Two different deadlines apply to appeal a first-instance decision:

• a short deadline of 30 days in case the winning party has served the decision; and
• a long term of six months in case of publication of the ruling.

In appeal proceedings, the appellant may request a complete review of the first-instance proceedings, with reference to both factual and legal elements. In turn, the decisions of the Court of Appeal may be further challenged before the Supreme Court (Corte di Cassazione) within (i) a short term of 60 days from the date of service of the ruling, or (ii) a long term of six months from the publication of the ruling. In such a case, appeals are admissible only on points of law and the Supreme Court cannot revise the factual elements as found by the Court of Appeal in the second instance.