Antitrust Litigation 2024 Comparisons

In Italy, antitrust litigation is on the rise.

New rules have made it easier for claimants to bring actions for antitrust damages. Recent infringement decisions, in terms of their temporal scope and the products involved, concern a wide range of potentially affected parties. There has therefore been a significant increase in the number of cases, and an increase in general awareness of the possibility of bringing actions for antitrust damages.

However, the new rules (and the related novel legal issues) are still being tested by courts and practitioners. Courts are probably not sufficiently staffed to handle this increasing workload, and the case law is developing slowly.

Please see the Italian Trends & Developments chapter in this guide for further details.

The most important recent development has been the adoption of Legislative Decree No. 3 of 19 January 2017 (the “Damages Decree”), implementing Directive No. 2014/104/EU on actions for antitrust damages. The Damages Decree introduced a number of substantive and procedural provisions to make it easier for claimants to bring actions for antitrust damages. The provisions of the Damages Decree, including in light of general principles of Italian law, are discussed in the remainder of this Law & Practice Section.

Please see the Italian Trends & Developments chapter for an overview of key case law developments.

The main statutory basis for private antitrust claims is the Damages Decree. Article 33(2) of Law No. 287 of 10 October 1990, concerning claims for damages for infringements of competition law, is also a statutory basis for such claims.

Claims can be based on previous findings of an antitrust infringement by the Italian Competition Authority (the "ICA") or the European Commission (the “Commission”) (so-called follow-on claims), or made on a standalone basis (in which case claimants have to also demonstrate the infringement itself).

As an alternative, private antitrust claims may be brought on the basis of general provisions of Italian civil law, including:

• Article 2043 of the Italian Civil Code concerning tort liability; and/or
• Article 2598 of the Italian Civil Code concerning unfair competition.

Pursuant to Article 18 of the Damages Decree, jurisdiction to decide over claims arising from infringements of EU and Italian competition law belongs to the Specialized Sections for business matters of the first instance and appeal courts of Milan, Rome and Naples. In particular:

• the Milan courts cover the judicial districts of Northern Italy;
• the Rome courts cover the judicial districts of Central Italy and Sardinia; and
• the Naples courts cover the judicial districts of Southern Italy and Sicily.

Pursuant to Article 7(1) of the Damages Decree, decisions of the ICA on finding an infringement of EU and Italian competition law are binding on national courts once they are final (ie, are confirmed after judicial review or no longer subject to appeal). The binding effect of final ICA decisions concerns the nature of an infringement and its material, personal, temporal and territorial scope. Those aspects of final infringement decisions cannot be questioned before civil courts.

Before the Damages Decree was adopted, the Italian Supreme Court ruled that the ICA’s final decisions were to be considered as a form of preferred evidence of an infringement (prova privilegiata). This principle remains applicable in cases where the Damages Decrees does not apply. In practice, this principle may imply that the burden of proof is on the defendant to rebut the existence of an infringement.

The binding effect of final ICA decisions is nonetheless limited to the existence of an infringement.

In all cases, claimants are required to demonstrate:

• the damages;
• the causal link between the infringement and the damages; and
• the quantification of the damages.

The ICA may play a limited role before civil courts. Pursuant to Article 4(1) of the Damages Decree, as well as Article 213 of the Italian Civil Procedure Code, courts may order the ICA to disclose evidence from its investigation file only to the extent that the parties or third parties are reasonably not in a position to provide it. The ICA may submit observations to the civil court as to the proportionality of the disclosure request.

Additionally, under Article 14(3) of the Damages Decree, courts may seek assistance from the ICA to determine the amount of damages to be awarded to the claimants arising from the infringement (in this respect, see also 8.1 Damages: Assessment, Passing on and Interest).

Similar principles apply to Commission decisions (under Article 16 of Regulation (EC) No 1/2003). In contrast, decisions of foreign national competition authorities are not binding on Italian courts. They merely qualify as prima facie evidence, to be assessed together with any other available evidence.

In principle, under the general rule set out in Article 2697 of the Italian Civil Code, claimants bear the burden of proving the constituent facts on which their claim is based, while defendants are required to provide any appropriate evidence in rebuttal. In the context of antitrust litigation, this general rule implies that claimants seeking damages must prove the unlawful conduct, the damages they suffered, and the causal link between the conduct and damages.

Moreover, the standard of proof incumbent on the claimant in civil proceedings requires the claimant to prove its case on a balance of probabilities, namely, on the “more likely than not” criterion (più probabile che non).

The Damages Decree sets out specific provisions for civil antitrust cases, which are intended to reverse or otherwise ease the burden of proof for claimants.

In particular, to the extent that they are applicable in each given case:

• Article 7(1) provides that certain aspects of final ICA decisions are “irrefutably established” (see 2.3 Impact of Competition Authorities);
• Article 14(2) provides for a rebuttable presumption concerning the existence of damages caused by a cartel, with the burden of proof shifting to the infringer to rebut – in such cases, claimants still have to prove the extent of the damages allegedly suffered and the causal link; and
• Article 12(2) provides indirect purchasers (ie, claimants that acquired products or services affected by an antitrust infringement from persons other than the infringer) with a rebuttable presumption that the overcharge caused by the relevant infringement was passed on to them, if they demonstrate that:
1. they are indirect purchasers;
2. the defendant infringed competition law; and
3. the infringement resulted in an overcharge for direct purchasers.

At the time of writing, the above-mentioned specific rules of the Damages Decree have not yet been applied in practice before civil courts in Italy.

The pass-on defence is available and governed by Articles 10 to 13 of the Damages Decree. It provides that defendants bear the burden of proof, which they can discharge by seeking disclosure of evidence from claimants or third parties.

This is in line with general principles of Italian law, according to which:

• it is up to defendants to show that claims are unfounded (as they are if the alleged damages have been passed on to others); and
• claimants cannot be awarded compensation exceeding the damages they actually suffered (see also 8.1 Damages: Assessment, Passing on and Interest).

The statute of limitations is governed by Article 8 of the Damages Decree, which provides that the limitation period for bringing an action for damages is five years, starting from the moment when:

• the infringement has ceased; and
• claimants are or should be aware of:
1. the relevant conduct and the fact that it constitutes an antitrust infringement;
2. the fact that the infringement caused them damages; and
3. the identity of the infringer(s).

This is broadly in line with general principles of Italian tort law.

In addition, the Damages Decree provides that the limitation period is suspended if the ICA opens an investigation into the relevant conduct, until one year after the ICA infringement decision becomes final.

The length of antitrust litigation largely depends on the complexity of the analysis required to assess the infringement (particularly in the case of standalone claims) and the damages.

In general, a first-instance case takes no less than two to three years.

The provisions of the Damages Decree, which is the main statutory basis for individual actions (see 2.1 Statutory Basis), also apply in the case of class actions.

Moreover, depending on when the relevant infringement occurred, the specific statutory basis for class actions is as follows.

• Article 140-bis of the Italian Consumer Code for infringements that occurred before 19 May 2021. The relevant procedure is only available to consumers and is based on an opt-in mechanism. Article 140-bis has been applied in a limited way in practice, in terms of both the number of actions and the damages awarded.

• Articles 840-bis to 840-sexiesdecies of the Italian Civil Procedure Code for infringements that occurred after 19 May 2021. The relevant procedure is available for any type of class (including consumers, businesses, professionals and public entities) to the extent that the class members intend to enforce a “homogeneous individual right”. Non-profit organisations and associations whose statutory objective includes the protection of homogeneous individual rights may also bring these class actions, if they satisfy certain requirements and are listed in a special register held by the Ministry of Justice.

In addition to class actions, Italian law provides for representative actions to protect the collective interests of consumers. This procedure, which is governed by Legislative Decree No. 28 of 10 March 2023, implementing Directive (EU) 2020/1828, is only available to consumers represented by “qualified entities”, namely certain consumer associations and independent public entities (notably including the ICA).

Representative actions apply to disputes concerning, inter alia, unfair business-to-consumer commercial practices. Accordingly, there seems to be scope for this procedure to be used in the context of private antitrust litigation.

Class actions in Italy are based on an opt-in mechanism. The mechanism differs depending on the applicable procedure (see 4.1 Statutory Basis):

• for class actions governed by Article 140-bis of the Italian Consumer Code, potential members of the class are entitled to seek admission to the class within 120 days from the date on which the court declared the class action admissible; and
• for class actions governed by Articles 840-bis to 840-sexiesdecies of the Italian Civil Procedure Code, potential members of the class are entitled to seek admission to the class between 60 and 150 days after the publication of either:
1. the court order declaring the class action admissible; or
2. the court’s ruling on the merits upholding the class action, where the specific time-limit is set in the court order or ruling.

As far as representative actions are concerned, the “qualified entities” (see 4.1 Statutory Basis) are entitled to bring them on their own, without a power of attorney granted by the relevant consumers.

The Italian legal framework concerning class or representative actions does not make a distinction between direct and indirect purchasers.

Based on general principles of Italian law, both direct and indirect purchasers are entitled to bring them. However, indirect purchasers would of course be required to prove that the relevant damages were passed on to them by the direct purchasers.

The first step in a class action is a certification procedure aimed at assessing the eligibility of the claim.

While there are slight differences between the two types of class actions available (see 4.1 Statutory Basis), a claim will generally be held inadmissible if:

• it is manifestly ungrounded;
• there is a conflict of interest;
• the relevant individual rights lack homogeneity; or
• the class member or entity bringing the action cannot adequately represent and protect the rights of the class.

Representative actions also entail a certification procedure. Certification is denied under similar circumstances, and also if:

• the representative entity lacks the necessary requirements for legal standing; or
• the action is not within the official purpose of the qualified entity.

Regarding jurisdiction, Regulation (EU) No. 1215/2012 (“Brussels I-bis”) provides that, as a general rule, Italian courts have jurisdiction when the defendant is domiciled or resident in Italy, or – in the case of multiple defendants that are domiciled in different member states – one of the defendants is domiciled or resident in Italy. Moreover, considering that antitrust claims are considered to be tort claims, Italian courts also have jurisdiction when the relevant “harmful event” occurred in Italy. For additional specific rules on the courts having jurisdiction for antitrust claims, see also 2.2 Courts.

The applicable law is governed by Article 6 of Regulation (EU) No. 864/2007 (“Rome II”). In particular, in the case of non-contractual obligations arising out of an act of unfair competition, the applicable law will be that of the country where the competitive relations or the collective interests of consumers are, or are likely to be, affected.

Moreover, in the case of non-contractual obligations arising out of a restriction of competition:

• the applicable law may be that of the country where the market is or is likely to be affected, or that of the domicile of the defendant, where multiple markets are or are likely to be affected; and
• if the claimant brings a claim against more than one defendant, the claim can only be based on the law of the court seized, if the market in that member state is amongst those directly and substantially affected by the relevant restriction of competition.

Documents may be disclosed under the general rules of the Italian Civil Procedure Code (Article 210 onwards) and/or under the special rules for antitrust litigation in the Damages Decree (Articles 3 to 5).

Under Article 210 of the Italian Civil Procedure Code, the party seeking disclosure has to show that the documents sought are necessary and indispensable for the case. Disclosure requests have to be specific and can only concern documents that are known to be existing.

The Damages Decree, and the courts’ recent decision-making practice in implementing its provisions, seems to have extended the scope of disclosure in civil antitrust cases. The disclosure request, which should be specific and comply with the principles of proportionality and “subsidiarity” (meaning that the document sought should not be accessible otherwise), may concern “evidence” as well as “categories of evidence”. In practice, this means that broader requests can be made, and that disclosure may not be limited to documents.

The Damages Decree also contains specific provisions concerning disclosure of confidential documents, including documents relating to leniency statements, settlement submissions and ongoing investigations of the ICA. In relation to confidential documents, the Damages Decree provides a non-exhaustive list of remedies that courts may apply to ensure that confidentiality is protected (such as the possibility to submit redacted versions of confidential documents, and to organise in camera hearings and data rooms). Leniency statements and settlement submissions cannot be disclosed under any circumstances (see also 6.3 Leniency and Settlement Agreements), while other documents relating to ICA investigations can only be disclosed when the investigations are over. These rules aim to ensure that public enforcement of antitrust laws is not prejudiced by private enforcement.

Failure to comply with a disclosure order has different consequences depending on the legal basis for the request. Under the general rules of the Italian Civil Procedure Code, failure to disclose documents can result in courts drawing a negative inference if the disclosure order was addressed to a party to the proceedings. Under the Damages Decree, in the case of failure to comply with a disclosure order, courts can draw a negative inference and also issue an administrative fine ranging between EUR15,000 and EUR150,000, regardless of whether the addressee of the disclosure order is a party to the proceedings.

Under Article 3(6) of the Damages Decree, communications between external counsel and their clients are legally privileged and can be withheld from disclosure.

In contrast, legal privilege does not apply to communications with in-house lawyers in Italy.

Pursuant to Article 4(5) of the Damages Decree, leniency statements and settlement submissions are protected from disclosure.

However, claimants may submit a reasoned request to have access to certain documents to make sure that they effectively relate to leniency statements or settlement submissions.

Witness evidence is rare in the context of antitrust litigation in Italy, as courts tend to rely on documentary and expert evidence.

However, under the general rules of Italian law, parties may seek a court order allowing a witness to provide evidence on specific facts to be set out in a precise and concise form. Witnesses are not allowed to provide opinions or subjective assessments. Several limitations apply to witness evidence concerning contracts or circumstances otherwise resulting from written evidence.

The request for witness evidence must clearly indicate the name of the witness as well as the specific facts on which the witness will be questioned by the court at a specific hearing (see 7.2 Expert Witness Role and Procedure). The other party may request to ask additional questions to the same witness, or to hear other witnesses to provide evidence in rebuttal.

The relevant questions are asked by the court during a specific hearing scheduled for that purpose. Counsel to the parties is only allowed to request the court to consider asking follow-up questions or seeking clarifications.

If the witness fails to appear at the relevant hearing, the court may order that the witness be summoned again or even be compelled to appear. Failure to appear without a justification may result in the witness being fined up to EUR1,000.

Considering the complexity of private enforcement proceedings, particularly with respect to the quantification of damages, the role of experts is crucial.

Courts routinely appoint their own independent experts, either of their own motion or upon request by the parties. Court-appointed experts are instructed to answer a set of specific questions set out by the court, normally after consultation with the parties.

The parties normally also appoint their own experts.

All experts participate in a parallel procedure (“consulenza tecnica d’ufficio”) by attending meetings, accessing records and submitting technical briefs. The court-appointed expert has extensive powers to organise the expert phase, and both the court-appointed expert and the parties can resort to the judge to solve matters on which there is no agreement between the experts or the parties (such as on the need to disclose certain documents or the interpretation to be given to a question posed to the expert).

At the end of the expert phase, the court-appointed expert submits a written report containing its findings and conclusions regarding the questions posed by the court. The final court decision adjudicating the claim typically relies on the findings and conclusions of the court-appointed expert, but the court is not bound by them. Courts may depart from the findings and conclusions of the court-appointed expert and may also decide to request a supplement to the expert report or order that a new expert phase take place if there are further technical issues to address or re-address.

Typically, an expert phase is very complex and can last from a minimum of six months to (well) over a year.

Damages are typically assessed by a court-appointed expert in the context of an expert phase (see 7.2 Expert Witness Role and Procedure). Experts normally follow the guidelines set out in the Commission’s 2013 Practical Guide on quantifying antitrust harm in damages actions.

Courts have discretion over the assessment of damages, and while they tend to rely on the findings and conclusions of court-appointed experts, they may also assess damages based on equitable principles, although they rarely do so in full.

As noted previously in 2.3 Impact of Competition Authorities, the Damages Decree allows courts to seek the ICA’s assistance for the quantification of damages. However, courts appear to be reluctant to do so, as they generally prefer to appoint an expert to assess damages.

Under general principles of Italian (and EU) law, damages should be compensated in full, but overcompensation is prohibited (see 2.5 Pass-On Defence). As a result, punitive, multiple and exemplary damages are not available under Italian law. There is however one (limited) exception: if punitive damages are awarded in a foreign ruling, under certain conditions that ruling may be enforced in Italy.

Passing-on is an important part of the assessment of damages, provided that the defence has been raised in a timely manner by the defendant(s) (see also 2.5 Pass-On Defence).

Experts are expected to follow the methodologies set out in the Commission’s 2013 Practical Guide on quantifying antitrust harm in damages actions, and in the 2019 Guidelines for national courts on how to estimate the share of overcharge that was passed on to the indirect purchaser.

The assessment of damages typically includes calculation of interest. Under Italian law, interest accrues from the date on which the harmful event occurred (ie, when the infringement took place) to the date on which payment is made.

Legal interest is typically due under Article 1224 of the Italian Civil Code, based on an interest rate that is updated annually and is currently 2.5%. From the time the claim is filed in court, the higher interest rate for payment delays in commercial transactions (which is updated every six months and is currently 12.25%) applies.

On top of interest, successful claimants are also entitled to monetary revaluation (rivalutazione monetaria). Monetary revaluation is intended to adjust the monetary value of damages incurred in the past to the date they are actually awarded. It is calculated on a yearly basis, normally applying an index set out by the Italian National Institute for Statistics and reflecting the variation of consumer prices over time.

Antitrust liability in Italy is joint and several among infringers. Accordingly, claimants are entitled to seek full compensation from any of the infringers, both under a general principle of Italian law (Article 2055 of the Italian Civil Code) and under the Damages Decree (Article 9).

The Damages Decree provides a number of exceptions to the joint and several liability among infringers, namely in the following cases.

• Immunity recipients, which are jointly and severally liable only vis-à-vis their direct and indirect purchasers (and where the same limitation applies to their exposure in the case of contribution claims by other infringers; see 9.2 Contribution).
• Small and medium-sized enterprises (“SMEs”, as defined under the Commission’s 2003 Recommendation concerning the definition of micro, small and medium-sized enterprises). An SME is jointly and severally liable only vis-à-vis its direct and indirect purchasers if:
1. its market share did not exceed 5% during the infringement period;
2. the SME would risk exiting the market if its liability were to be joint and several; and
3. the SME was not a ringleader in the infringement and was not involved in another competition law infringement in the past.

Nonetheless, both immunity recipients and SMEs remain jointly and severally liable vis-à-vis damaged parties, other than their respective direct and indirect purchasers, if such parties cannot obtain full compensation from other infringers.

In the case of a partial settlement with one or some of the infringers, claimants cannot seek payment of the settlement amount from non-settling infringers, but they can seek compensation for the damages that were not settled. However, if the non-settling infringers are not able to pay the compensation they owe to claimants because they are insolvent, claimants can seek compensation from the settling infringer(s) unless the settlement agreement provided otherwise.

Under the general principle set out in Article 2055 of the Italian Civil Code, in the case of joint and several tort liability, the party that has compensated the damage has a contribution claim against the other infringers. The share of liability of each infringer is based on the seriousness of its respective fault and the related consequences. If the entity of the various shares of liability cannot be ascertained, shares are presumed to be identical.

The Damages Decree contains additional specific rules for antitrust claims, providing (in Articles 9 and 16) that the following apply.

• Immunity recipients are only exposed to contribution claims for the damages caused to their direct and indirect purchasers.
• If a claim is settled in part:
1. the non-settling infringers cannot seek a contribution from those that settled; and
2. the share of liability of each infringer shall be determined taking into account the settlement amount.

From a procedural standpoint, a contribution may be sought:

• directly in the context of the main proceedings brought by the claimants, including by requesting that the other infringers are joined as parties to the proceedings if they are not already parties to the proceedings (such joinder requests are normally granted by courts); and
• in subsequent proceedings between the various infringers, to be initiated after the main proceedings of the claimants are over and compensation has been paid to the latter (in excess of the share of liability of the relevant infringer).

Injunctive relief, including without notice to the other party, is generally available under Italian law subject to the claimant showing that:

• it has a prima facie case; and
• it will suffer irreparable harm if the relief is not granted.

However, injunctive relief is not a remedy normally available for compensation of damages, including in antitrust litigation cases, as compensation and payment of damages can normally be obtained only after a full-fledged determination and assessment of the same.

Methods of alternative dispute-resolution are generally available under Italian law, including in the context of private antitrust litigation. They include:

• arbitration;
• mediation; and
• so-called assisted negotiation.

Arbitration is governed by the Italian Civil Procedure Code. While the parties can resort to arbitration to resolve disputes concerning antitrust matters, arbitration is rarely used in practice for antitrust disputes, unless the relevant parties are bound by a contract containing an arbitration clause that is sufficiently broad in its scope.

Mediation is governed by Legislative Decree No. 28 of 4 March 2010 and can also be used for antitrust disputes subject to the agreement of the parties (as it is not mandatory for antitrust disputes).

Assisted negotiation (negoziazione assistita) is a special dispute-resolution mechanism governed by Law Decree No. 132 of 12 September 2014. It involves the parties and their lawyers, and entails an agreement to co-operate in good faith with a view to settling the dispute amicably. Assisted negotiation is also non-mandatory in the case of antitrust disputes.

Litigation funding is available in Italy and, despite being on the rise recently (see the Italian Trends & Developments chapter in this guide), it is still not specifically regulated.

The only (limited) specific regulation concerns representative actions (see 4.1 Statutory Basis), in relation to which the writ of summons must disclose any financing obtained from third parties so as to allow the court to assess any possible conflict of interest.

Under Italian law, the award of costs depends on the outcome of the proceedings. Losing parties are normally ordered to refund the costs incurred by winning parties. However, courts may order that each party bear its own costs, particularly if none of the parties is a clear winner or loser or if the case concerned novel or controversial legal issues.

Costs include legal costs (based on an official tariff set out in a Ministerial Decree) and court fees, and other costs related to the proceedings (including fees of court-appointed experts). Courts have significant discretion in quantifying the costs to be awarded and may take into account various factors, including the value of the claim, the number of parties involved, the importance and complexity of the case and the extent of the work of the parties’ counsel.

First-instance judgments may be appealed before the appeal courts of Milan, Rome or Naples, depending on which Specialized Sections adjudicated the claim at first instance (see 2.2 Courts).

The deadline for filing an appeal is:

• 30 days from official service of the judgment by the opposing party; or
• in the absence of such official service, six months from publication of the judgment.

Appeal courts may review the first-instance judgment on any point of fact and law specifically raised in the appeal.

Judgments of appeal courts may be further appealed before the Italian Supreme Court within:

• 60 days from official service of the appeal judgment by the opposing party; or
• in the absence of such official service, six months from publication of the judgment.

Appeals before the Italian Supreme Court can only be based on points of law.

Please see the Italian Trends & Developments chapter in this guide.