Italian Implementation Of The Directive 2014/104/EU On Antitrust Damages Actions

On January 19, 2017, the Italian Government has adopted the Legislative Decree No. 3/2017 ("Decree"), which has implemented in Italy the Directive No. 2014/104/UE dated November, 26, 2014, on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union ("Directive"). One year after its adoption, this article summarizes the main principles set forth by the Decree and examines their impact on the Italian private antitrust enforcement system resulting from the relevant case-law.

Standing

Any individual - i.e., any natural or legal person, as well as any entity devoid of legal personality - may claim damages for loss caused to him by an infringement of the European and/or Italian competition law provisions1, also by means of class actions2.

This principle is in line with the Italian legal system and case-law: the recognition of such a wide standing had already been set by the Italian Supreme Court in 20053, in the wake of ECJ's Courage judgement4. Moreover, class actions for damages (including damages caused by anti-competitive practices) - based on an opt-in model - have been introduced in Italy in 20105.

Compensatory nature of the antitrust damages

The victims of antitrust violations may claim a compensation, which shall (only) cover actual loss (damnum emergens), loss of profit (lucrum cessans), plus the payment of interests. Over-compensation or multiple compensation (e.g., treble damages as in the United States) are not admitted6.

This principle is in line with the Italian legal system and case-law, according to which the compensation shall place the injured person in the same position in which that person would have been, had the harmful event not been committed.

Disclosure of evidence by counterparty or third parties

The victims of antitrust infringements tipically face difficulties in supporting their claims with evidence, in particular in the case of secret cartels. In order to alleviate this task, the Decree provides that, upon reasoned request of a party, the courts may order the counterparty or third parties the disclosure of specified items of evidence or categories of evidence that are in their availibility, where (a) the requesting party has given sufficient evidence of the plausibility of its claim; (b) the disclosure is relevant to the action; (c) the disclosure is proportionate, balancing the interests of all parties concerned; (d) the request does not concern attorney-to-client correspondence7.

Should such items of evidence contain confidential information, the courts may adopt any measure to protect such confidential information from being disclosed during the litigation. Those measures include the possibility of redacting sensitive passages 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.

The Italian system already has a provision allowing a similar disclosure: pursuant to Article 210 of the Italian Civil Procedure Code ("ICPC"), upon request of a party, the courts may order the counterparty or third parties the disclosure of specified documents or further means of proof, which are deemed to be relevant to...