Private Antitrust Enforcement - Status Quo in Italy

Since at least fifteen years private enforcement of EU and Italian antitrust rules has become a substantial phenomenon in the Italian practice, and its importance has significantly increased, both in terms of quantity and quality of the cases. This fact has of course to do with the modernization of EU antitrust law. The rise of private enforcement in Italy cannot, however, be explained just with the entry into force in 2004 of Regulation 1/03, as its burst clearly predates it In this framework, it should be kept in mind that many of private antitrust cases reported so far involve the application of national antitrust law, and not directly of EU antitrust law. This is due to the fact that, until the entry into force of Regulation 1/03, AGCM mainly applied the Italian Antitrust Act of 1990 to cartels or abuses of dominant positions having effect on the Italian market. As a consequence, follow-on cases relied on the Italian Antitrust Act as well. As Italian law is based on the single barrier approach, however, AGCM practice subsequent to the modernization has been based almost entirely on EU law. Private antitrust suits will presumably follow the same pattern . The EuZWR article assesses some of the most important issues arising in private enforcement cases, building on case law which is mainly based on Italian antitrust law, but is relevant for EU law decentralized enforcement too. Moreover, some important reforms of the national procedural rules relevant in this field are taken into account, that were adopted in very recent times, as they should substantially contribute to further strengthening private antitrust enforcement in Italy, both from a quantitative and a qualitative point of view. First of all, the article describes the major step towards specialization of the courts entrusted with private enforcement cases taken throughthe adoption of with Law Decree 1/2012. Moreover, the class action introduced for the first time in the Italian system since 2010 is analyzed, which applies inter alia to antitrust law cases. The relevant case law is moreover discussed, making it quite likely that class actions will play an important role in both follow-on and stand-alone cases. The possibility of linking individual actions with pilot class actions raises the question of the statute of limitation, which is analyzed in the framework of the ECJ Manfredi case law and the Italian Supreme Court case law. The relationship between public and private enforcement procedures is then taken into account, considering in particular the effects of public enforcement decisions in private enforcement procedures under the lens of both reg. 1/03 and the Italian case law. The article deals then with issues of burden and standard of proof in private enforcement cases, considering also the ways in which access to information can be granted through leniency files and discovery orders. Relevant Italian and EU case law (Pfleiderer) is discussed. Finally, the use of the powers provided for by art. 15, para. 3, of Regulation 1/03 is discussed, with reference to the survey of reported case law, as well as the outcomes of a research coordinated by the author of this article in the framework of EuroCompAid, a DG COMP funded networking Program. The article concludes that the procedural reforms that took place in Italy in the recent years, concerning private enforcement of antitrust law, sound promising. The specialization of courts entrusted with such actions, as well as the foreseeable increasing recourse to class actions, will presumably help the development of an already lively private enforcement practice. It moreover concludes that some other reforms seem to be desirable, inter alia an extension of the “European” IP discovery order to antitrust cases. Moreover, a more factual cooperation between civil courts and administrative authorities would certainly enhance private enforcement effectiveness. However, the author stresses that the end of achieving effective private enforcement should not be pursued at any costs. Particularly, providing for a binding effect of administrative decisions before civil courts would seems to the author to be both necessary and non-desirable.