Questionnaire of the International Reporter LIDC

QUESTIONNAIRE OF THE INTERNATIONAL REPORTER – LIDC

QUESTION A

Enrico Adriano Raffaelli Rucellai & Raffaelli Via Monte Napoleone 18 20121, Milano T.: +39.02.76 45 771 F.: +39.02.78 35 24 [email protected]

Should private enforcement (actions for damages) of competition law be encouraged, and if so, through what concrete measures?

1. GENERAL CONTEXT

 Description of the applicable legal provisions

In Italy, antitrust matters are governed by Law 10 October 1990 No. 287 (hereinafter also “Law 287/1990). The relevant provisions are Articles 2 and 3, which are the equivalent to

Articles 81 and 82 EC, and ARTICLE 33(2), which grants to the ordinary second instance court (the territorially competent Corte d’Appello) exclusive jurisdiction on violation of national competition rules. Pursuant to Article 33(2) «actions for nullity and for damages as well as actions for obtaining interim relief in connection with violation of the provisions set forth in Titles from I to IV are brought before the Corte di Appello having territorial jurisdiction».

Broadly speaking, private damages actions for breach of competition rules are governed by general rules of the Civil Code and of the Code of Civil Procedure. In particular, Article 2043 of the Civil Code lays down the general principal of tort (non-contractual) liability reading as follows: «any act committed either with intent or with fault causing an unjustified injury to another person obliges the person who has committed the act to compensate damages». As far as contractual liability is concerned, the relevant provision for bringing an action for damages is Article 1372 of the Civil Code: «the contract has the effect of law as between the parties». It should be noted that the jurisdiction of the Corte di Appello, as provided by Article 33.2 of Law 287/1990, is limited to cases regarding the violation of national competition rules (i.e. cases dealt by Law 287/1990), whereas EC competition cases are left to the jurisdiction of the ordinary first instance courts.

Article 134 of the Italian Code of Industrial Property1 (hereinafter also ICIP) grants to specialized divisions of the ordinary first instance court exclusive jurisdiction to deal with “judicial proceedings relating to industrial property and to unfair competition, except for those which do not even indirectly interfere with the enforcement of industrial property rights, as well as to the torts connected to the exercise of industrial property rights, pursuant to Law No. 287 of October 10, 1990 and to Articles 81 and 82 of the EU Treaty, on which the ordinary judge exercises his cognizance, and in general the matters on which the specialized divisions have jurisdiction, including those indirectly connected (“connessione impropria”)”.

Moreover, Article 2 of Law 31 July 1997, No. 249, grants to the ordinary ordinary first instance court jurisdiction to deal with actions for nullity (and for damages) of agreements and concentrations releted to dominant positions in the field of telecommunications and radio/television broadcasting.

 Recent or foreseen changes in these provisions

It should be noted that Article 134 of the ICIP quoted above entered into force on September 19, 2005.

 Description of competent courts

In general terms civil proceedings may be brought before the Giudice di Pace (a) or the Tribunale (b); their respective jurisdiction is determined according to the value of the claim. The first instance judgements issued by the Giudice di Pace may be appealed before the Tribunale, whilst those issued by the Tribunale (Article 134 of the ICIP granted jurisdiction for national and EC competition cases related to industrial property issues to specialized division of the Tribunale (c)) may be appealed before the Corte di Appello (d). The Corte di Cassazione (e) is the supreme court of appeal in respect of judgements issued by the Corte di Appello and by the Tribunale acting as a second instance court. The Corte di Cassazione has no jurisdiction on the merits of the case, but only on matters of law. Please find below a brief description of the abovementioned courts.

1 Italian Code of Industrial Property, Legislative Decree No. 30 of February 10, 2005 (published in the Italian Official Journal No. 52 of March 4, 2005 – Ordinary Supplement) (a) The Giudice di Pace, according to Articles 7 and 9 CCP, has jurisdiction to deal with claims whose value does not exceed Euro 2.582,28. It should be noted that, if the value of the claim does not exceeds Euro 1.100,00, the Giudice di Pace shall decide the case on an equitable basis, as provided by Article 113 CPP2. The decisions issued by the Giudice di Pace may be appealed before the Tribunale; judgements decided in equity, may be appealed only before the Corte di Cassazione. With reference to competition cases, the Giudice di Pace has jurisdiction to deal only with EC competition claims (not related to industrial property issues) whose value does not exceed Euro 2.582,28.

(b) The Tribunale has jurisdiction to deal with any claim of a value higher than Euro 2.582,28, and with claims whose value is not determined. First instance decisions of the Tribunale may be appealed before the Corte di Appello. With reference to competition cases, the Tribunale has jurisdiction to deal only with EC competition claims (not related to industrial property issues) whose value exceeds Euro 2.582,28 or is not determined.

(c) Specialized divisions of the Tribunale have been appointed to deal with national and EC competition cases related to industrial property issues. Cases assigned to the specialized divisions shall be handled according to the special procedure - different from the ordinary one regulated by the CCP - applicable to corporate matters.

(d) The Corte di Appello is the ordinary second instance court. Pursuant to Article 33.2 Law No. 287/1990, the Corte di Appello has jurisdiction for actions for nullity, actions aimed at obtaining interim measures and claims for damages arising out breach of national competition rules. The decision of the Corte di Appello may be appealed only before the Corte di Cassazione, which may decide the case only on matters of law (questioni di legittimità) and not on the merits of the case. This implies that first instance decisions of the Corte di Appello in competition cases may only be appealed before the Corte di Cassazione on matters of law. It should be noted that the decision of the legislator to grant the Court of Appeal with jurisdiction for competition cases was welcomed by the literature, because of the competence and experience of this court. The appointment of the Court of Appeal as “competition court” in 2 Law No. 63 of 7 April 2003, the Giudicedi Pace may decide (on an equitable basis) claims notexceeding Euro 1.100,00, provided that they do not relate to contracts governed by uniform standard terms and conditions. Italy was commented as follows: “in establishing subject matter jurisdiction, the legislator wanted to make a clear statement: competition law is a serious matter to be decided quickly by higher level courts such as Courts of Appeal, thereby creating the only significant situation where these Courts act as first instance judges and one of the few areas where civil litigation offers no room for appeal on grounds of findings of facts. However, Article 33(2) proved to be very poorly drafted, as there was no reference to restraining or positive injunctions, to restitution under unjustified enrichment rules, or to the fact that subject matter jurisdiction does not cover suits concerning the violation of the EC Treaty competition rules, which remain in the jurisdiction of the low level courts in accordance with the general rule of jurisdiction given by the Civil Procedure Code”3.

Moreover, it should be noted that, the Corte di Cassazione decided on February 4, 2005, that the Corte d’Appello has jurisdiction for national competition cases independently from the legal nature of the claimant for damages.

(e) The Corte di Cassazione is the supreme court of appeal in respect of judgments of the Corte di Appello and of the Tribunale when this latter acts as a second instance court (see point (a) above). The Corte di Cassazione does not decide on the merits of the case but only on matters of law.

 Current debate and issues currently being considered regarding actions for damages

At presently in Italy there is an intense debate on the problem of consumers’ standing to sue, especially in case of third-party actions against the members of a cartel .

In the 2002 Axa Assicurazioni v Isvap e Larato ruling, the Corte di Cassazione held, inter alia, that consumers were not entitled to claim damages according to Article 33(2) of Law No. 287/90 as antitrust law contains provisions that are undertaking-oriented (i.e., provisions referring to undertakings as the subjects of the market) and that only undertakings are entitled to invoke . The solution adopted by the Corte di Cassazione is highly problematic and counterintuitive as it denies consumers of any possibility to invoke Article 33(2) of Law No. 287/90 without considering if the claimant’s cause of action is directly a cartel (or an abuse of dominant position) or a downstream agreement through

3 Paolo Giudici, Private Antitrust Law enforcement in Italy, The competition Law Review, August 2004, Volume 1 Issue ! pp. 61-85, http://www.clasf.org/CompLRev/assets/Vol1Issue1Article4.pdf which the members of the cartel or the dominant undertaking have put into effect their upstream illegal conduct; and it excludes any possibility to find out a link between the upstream anticompetitive conduct and the downstream agreement; consequently, the nullity of the upstream conduct does not pass on the downstream agreement.

One year late, in the Liquigas v Girelli ruling, the Corte di Cassazione held that the nullity of the upstream illegal conduct never pass on the downstream agreement and that consequently the latter remains valid, but the consumers may sue the contracting party invoking the ordinary rules concerning the recovery of damages .

More recently, however, the Corte di Cassazione has reconsidered its previous reasoning. In the 2005 Compagnia Assicuratrice Unipol SpA v R. ruling, it held that Law No. 287/90 contains provisions addressed not only to undertakings but also to the other subjects operating on the market . To this regard the Corte di Cassazione has pointed out that in case of an agreement in restriction of competition, the consumer-final purchaser is deprived of his right to an effective choice among the different products, whereas the downstream agreement represents the natural outcome of the upstream unlawful conduct as the former is the means by which the latter produces its effects. Consequently, where the consumer suffers a loss because of an upstream illegal conduct he is entitled to recover damages according to Article 33(2) of Law No. 287/90 although the consumer himself does not share any relation with the colluding undertakings.

2. LEGAL SYSTEM

2.1 ACCESS TO COURT

 Legal requirements

Any natural or legal person is entitled to claim damages in court. According to Article 100 of the Code of Civil Procedure «in order to bring an action or to resist it is necessary to have an interest in it». In order to bring a damage action the plaintiff has to prove:

- the existence of the damage,

- the causal link between the defendant’s conduct and the damage,

- the defendant’s fault in cases where the action is brought on a non contractual liability basis and

- the amount of the damage suffered.  Are collective actions available in your jurisdiction? Is the current system satisfactory? Should the possibility to bring class actions be introduced/developed?

In Italy, as far as the field of competition law is concerned, there is no provision allowing collective claims, collective actions, actions by representative bodies or any other form of public interest litigation.

On the contrary, Article 1469-sexies of the Civil Code (as modified by Law No. 52/96 which implemented EC Directive 93/13) and Law No. 281/98 entitle certain consumers associations to bring actions in order to protect consumers’ collective interests concerning some specifically listed rights (e.g., right to health protection, right to safety and quality of goods and services, right to be kept informed and to receive fair advertising, right to enter into fair and transparent contractual relationships, right to have consumers’ associations protected and improved, etc.). Although competition matters are not included in the above mentioned list, it is arguable that the right to enter into fair and transparent contractual relationships may be construed as encompassing the rights arising from competition law. In any case, up today consumers’ associations are only entitled to request cease-and-desist orders against conducts that may harm consumers interests, whereas they are not entitled to claim damages. To this regard the system is not satisfactory and it should be amended by introducing some forms of collective redress. Moreover, whatsoever collective redress is taken into account, there are two issues to be taken into account: firstly, it should be furtherly discussed the way of distributing the damages (only to the association, only to its members or to both); secondly, the way of calculating damages. To this regard, one might argue that as the association itself does not suffer any damage, the latter should be calculated on the basis of the illegal gain of the infringer; on the contrary, if damages have to awarded to the association’s members, they should be calculated on the basis of the individual damage suffered.

2.2. DIFFICULTIES ENCOUNTERED WHEN ESTABLISHING THE LEGAL CONDITIONS FOR THE

AWARD OF DAMAGES

(a) as regard the proof of the fault / of the violation of competition law

 What are the powers of the judges in the research of evidence? Should judges be able to request the production by the parties of "all documents relating to the case", or only of documents that were previously identified (comparison with US discovery, UK disclosure)? In Italy there are no specific provisions on the disclosure of evidences. Pursuant to Article 210 of the Code of Civil Procedure a party may request the judge to order the other party or third parties to disclose specifically identified documents, which are not in possession of the requesting party, provided that the judge deems that the disclosure is indispensable to prove facts that cannot be proved otherwise. However, it is of paramount importance to stress the fact that the Italian rules on disclosure of evidence have always to be read in the light of three basic principles. Pursuant to Article 2697 of the Civil Code «whomsoever intends to enforce a right in court shall prove the facts supporting the claim. The party challenging the validity of those facts or claiming that the enforced rights has changed or is exhausted shall prove the facts on which such objection is based» (so-called principle of the burden of proof); pursuant to Articles 99 and 115 of the Civil Code the judge has to decide the case within the limits of the plaintiff’s allegations and defendant’s counterclaims (so-called principle of demand) and on the basis of evidence produced or requested by the parties to the proceedings (so-called principle of availability of evidence). Although it is to be said that, generally speaking, Italian procedural law does not allow pre- trial discovery, Articles 692 to 699 of the Code of Civil Procedure enable a person to secure evidence before the starting of a proceeding by requesting the judge to take evidence in the form of a testimony and of description of the state of a place or of the quality of things, provided that there is the risk that after the starting of the proceeding and the formal admission of evidence, the evidence itself cannot be usefully taken anymore (being the witness dead or otherwise prevented from giving its testimony or the state of place or thing altered).

In Italy the fault requirement in antitrust claims is not clear cut yet. Since there is no specific reference in Law No. 287/90 about this topic, we should refer to general rules applying to tort liability which is based on fault by the defendant (Article 2043 of the Civil Code).

However, as Article 2600 of the Civil Code, referring to unfair competition claims, provides for a system based on the rebuttable presumption of fault, some authors have underlined that the same rule should apply to antitrust damages actions as well4. Although such an approach tends to alleviate the claimant’s burden of proving the psychological element of the illegal conduct, it poses two basic problems: firstly, according to Italian law analogy may be used as a means of interpretation only in cases where there is no specific

4 L. Nivarra, La tutela civile: profili sostanziali, A. Frignani, R. Pardolesi, A. Patroni Griffi, L.C. Ubertazzi, Diritto antitrust italiano, Bologna, 1993, II, 1459. rule. To this regard, as Article 2043 of the Civil Code lays down a general principle applicable to antitrust claims as well, analogy should not be admitted; secondly, a system based on the rebuttable presumption of fault for breach of Italian competition law could be inconsistent with general principles applying in case of breach of EC competition law. In order to overcome these objections it has been argued that the fault requirement should be interpreted in objectives terms on the basis of the intrinsic characteristics of the unlawful conduct. Put it simply, fault must be proven, but the claimant has to prove only the unlawful conduct as the fault is seen as built in the unlawful conduct itself.

This solution, however, gives rise to at least two problems: on the one hand, and from the point of view of logic, there is no sense in a solution which tends to construe in objective terms a subjective element such as the fault requirement; on the other hand, it has been argued that in Italy fault is strictly linked to the breach of a provision of law aimed at preventing non voluntary events that may occur in the course of legal conducts. To this regard, it is evident that Law No. 287/90 does not share this aim.

 What is the role played by competition authorities in actions for damages? Do you think cooperation between competition authorities and courts is favourable? What kind of cooperation? Should courts have access to the competition authorities' files?

Cooperation between competition authorities and national courts is already considered by Regulation 1/2003. Further cooperation would be difficult to be applied, considering, on the one hand, the risk of making useless the intentions of the Commission to decentralise antitrust enforcement in order to maximise time and resources to dedicate to hardcore antitrust restrictions and, on the other hand, that also national competition authorities’ public enforcement activity could be penalised in case of strict co-operation with national courts in damages cases. Access to competition authorities files by national courts should be welcomed at the condition that parties’ confidentiality is guaranteed.

 Particular issue arising in relation to leniency programmes: how do leniency procedures and actions for damages coexist in a given case? What is your view on a possible (partial or total) immunity as regard damages for leniency applicants? What would you suggest?

The enhancement of actions for damages in competition cases should be co-ordinated in relation to leniency procedures. The possibility of actions for damages could, in fact, lower the interest of a cartel member to apply for leniency. Thus, the possibility to exclude from disclosure the actual corporate statement and disallow that a claimant seeks through disclosure the documents in the form submitted by the leniency applicant to a competition authority looks favourable. In addition, it could be useful to consider the possibility to extend leniency to undertakings which, after the first applicant, declare their participation to the cartel, at the condition that they declare to be available to compensate damages to their direct clients.

 Issue of the binding nature of the decisions of competition authorities: what is the legal value of decisions rendered by (national, foreign) competition authorities in your jurisdiction? Should they bind the court before which an action for damages is brought?

Civil courts are not bound by the findings and decisions of administrative authorities, antitrust authority included. However, civil courts tend to rely on antitrust authority findings and decisions, especially as far as the economic assessment is concerned.5 The same principle applies to the decisions of other national competition authorities, whilst civil courts are bound by the Commission’s decisions on the compatibility of an agreement or practice with Articles 81 (1) and 82 EC.

(b) as regard causal link and injury

 Can indirect victims of a breach of competition law (e.g.: indirect purchaser) bring an action for damages against the person responsible for the breach? Should such actions by indirect victims be available?

The problem of causal link and of injury may be examined from different point of view.

Firstly, according to Article 1223 of the Civil Code it is possible to compensate only damages that are the direct and immediate consequence of the unlawful conduct. This does not automatically implies that indirect victims cannot sue the infringer. Indeed, where a producer sells goods to his wholesalers at a supra-competitive price and the wholesalers pass on the overcharge to the consumers by raising their own prices, there is no doubt either that the end users suffer a damage which can be described as direct and immediate or that the wholesalers’ price increase is not likely to break up the causal link between the upstream producer’s infringement and the loss suffered by consumers downstream. To this regard it has been pointed out that the middleman’s conduct is only apparently voluntary

5 The Corte di Appello of Roma has made explicit reference to the competition authority’s findings in two decisions relating to damages actions for breach of competition rules (Corte di Appello di Roma, decision of January 15, 2001, Stream/Telepiù; Corte di Appello of Roma, judgment of January 20, 2003, Albacom/Telecom Italia). for, in reality, he is forced to pass on the overcharge to the consumer and this constraint represents the most evident sign of the persistence of the causal link6.

Furthermore, it must be reminded that since many years the Italian case law tends to interpret the principle of direct and immediate causation in a not very formalistic way, widening the area of the refundable damages so as to encompass also the mediate and indirect damages, provided that there are normal consequences of the unlawful conduct according to the so called principle of causal regularity7.

Secondly, it is well known in Italy that the principle of direct causation represents only one side of the coin, the other one being the principle of juridical causation: in other words, the infringer can be forced to compensate only damages that represent the realisation of the risk which the breached provision of law was intended to prevent, for only these damages can be considered unjust according to Article 2043 of the Civil Code. From this point of view the discussion tends to move from the problem of the proper plaintiff to the problem of the proper injury, that is what damages are refundable.

The Italian case law on the topic at issue is very scarce. As far as the passing on defense is concerned, the V.I.H. v Juventus F.C. case is the only one known up to today8. In the ruling the Corte di Appello of Torino held that V.I.H. was non entitled to recover damages as V.I.H entered into an illegal price fixing and tying agreement with Juventus with the intent to pass on any overcharge to the final consumers (i.e., the purchasers of tickets for football matches). However, in its ruling the Court of Appeal of Torino also emphasises that V.I.H. entered into the illegal agreement with intent (and therefore it was not entitled to recover damages) and that according to Italian law the contracting party that has passed on the damages to the consumers has not standing in court. In this judgement, therefore, there is a sort of overlapping between the passing on defense and the so called in pari delicto doctrine on one hand, and between the proper plaintiff and the proper injury on the other hand.

As far as the consumers’ standing is concerned, it is possible to refer to the abovementioned case law of the Corte di Cassazione (see point 1 General content, Current debate).

6 L. Nivarra, La tutela civilistica: profili sostanziali, see supra note 6. 7 Corte di Cassazione judgment of 14 April 1981, n. 2247. 8 Corte di appello of Tourin judgment, 6 July 2000, Danno e resp., 2001, 57, with annotations by S. Bastianon, Antitrust e risarcimento del danno tra Cassazione e giuirisprudenza di merito. See also M. Scuffi, Established principles and new perspectives in the Italian antitrust case law, Final report to the 5th Treviso conference of 16-17 May 2002 on “Antitrust between EC law and national law”. According to Article 1223 of the Civil Code damages are awarded on a compensation basis and shall comprise both claimant’s actual damage and lost profit. This means that no punitive or exemplary damages are available and that the basis for the assessment of damages is the injury suffered by the claimant and not the illegal gain of the defendant.

It is worthy to note that on 26 January 2006 the Advocate General Geelhoed delivered his opinion in joined cases C-295/04 to C-298/04, Manfredi v Lloyd Adriatico Assicurazioni (still pending before the ECJ) concerning a reference for a preliminary ruling made by the Giudice di Pace of Bitonto (Italy) on several questions related to the interpretation of Article 81. Particularly, as regard whether Article 81 has to be interpreted as meaning that where the national court sees that the damages that can be awarded on the basis of national law are lower than the economic advantage gained by the infringing party to the prohibited agreement should also award of its own motion punitive damages, the Advocate General has highlighted that «du point de vue du droit communautaire, la réparation du préjudice subi en raison d’une violation du droit communautaire doit être adéquate au préjudice subi. En l’absence de dispositions communautaires en ce domaine, il appartient à l’ordre juridique interne de chacque Etat membre de fixer les critères permettant de déterminer l’étendue de la réparation, étant entendu qu’ils ne peuvent être moins favorables que ceux concernant des réclamations ou actions semblables fondées sur le droit interne et que, en aucun cas, ils ne sauraient être aménagés de manière à rendre en pratique impossible ou excessivement difficile la réparation. Je n’estime qu’il soit nécessaire d’accorder une réparation plus élevées que le prejudice subi pour assurer l’effet utile de l’article 81, paragrapf 1, CE. Il est vrai que, si en vertu du droit national de la concurrence, des formes particulières de réparation peuvent être accordées, les intéressés doivent pouvoir y recourir su leurs recours sont fondés sur une violation des régles communautaires de concurrence»9.

 Is the evaluation by the courts of the injury suffered satisfactory? How can this evaluation be improved? Do you support the use of econometric or financial analysis models in order to facilitate the calculation? Should experts be granted imperative powers enabling them to have access to all necessary documentation for the evaluation of the injury?

Generally speaking all forms of evidence are available to the parties in order to prove the damage they have suffered provided that the evidence belong to the types explicitly

9 Opinion of Advocate General Geelhoed delivered on 26 January 2006, joined cases C-295/04 to C-298/04, Manfredi v Lloyd Adriatico Assicurazioni, consultable on the website www.europa.eu.int contemplated by law. Pursuant to Article 278 of the Code of Civil Procedure, when the existence of the damage has been proven but the amount to be awarded is still uncertain, the plaintiff may request the court to deliver a condemnation to undetermined damages and order that the proceedings continue only for the determination of the amount of damages. In cases where the precise amount of damages may not be proven, the judge shall determine it by way of an equitable assessment (Article 1226 of the Civil Code).

As regard the calculation of damages, up to today courts have assessed antitrust damages by making use of the but for condition technique on the basis of the before-and-after approach. This approach is based on a simple comparison of prices during the illegal conduct with the situation before and after the infringement. Its purpose is to provide a reasonable assumption of what the real price levels would have been in the absence of the infringement. In particular, in the Telsystem v Sip case10, the pool of experts appointed by the Corte di Appello of Milano specifically to determine the amount of damages suffered by Telsystem, affirmed that «the assessment of the economic significance of any entrepreneurial initiative requires an overall evaluation of its effects over the course of time , to be identified in accordance with the principles of the differential analysis. Therefore, all those (and only those) consequences that the activity generates at economic level and that would be missing in the absence thereof shall be imputed to it. If a disruption of the activity occurs, the economic consequences shall still be assessed according to the principles of differential analysis. In other words, one should identify the modifications that the adverse event induces in the expected manifestations of the economic initiative and that, in the absence of such event, would not occur»11.

The same approach has been used by the Corte di Appello of Milano in the Bluvacanze case12 and by the Corte di Appello of Roma in the Albacom v Telecom case13. Particularly, in the latter case, concerning an abuse of dominant position, the lost profits suffered by the claimant have been determines as follows: firstly, the court has ascertained Albacom’s market share before the abuse; then, it has been ascertained the total turnover made by Telecom during the period in which the abuse took place; lastly, the court has deemed that

10 Corte di appello of Milan judgment, 24 december 1996, Danno e resp.,1997, 602 with annotations by S. Bastianon, Antitrust e risarcimento del danno: atto secondo. 11 The passage of the experts’ report reproduced in the text is drawn from S. Bastianon, L’abuso di posizione dominante, Milano, 2001, 362. 12 Corte di appello of Milan, judgment of 30 April 2003, Bluvacanze, Danno e resp., 2004, 646, with annotations by S. Bastianon, Boicottaggio e diritto antitrust. 13 Corte di appello of Rome, judgment of 20 january 2003, Albacom v Telecom, Danno e resp., 2003, 1215, with annotations by S. Bastianon, Abuso di posizione dominante e risarcimento dei danni. Albacom’s lost profits were equal to that part of Telecom’s turnover corresponding to Albacom’s market share before the unlawful conduct.

The current system is not satisfactory. The possibility for judges to appoint experts should be extended, with particular reference to economic and financial analysis of a given market. The experts’ activity could be modelled on that already provided for in the field of enforcement of patent and trademark rights after the implementation in Italy of the TRIPs agreement.

 Do you favour a system allowing the award of damages to an amount exceeding the mere proven injury (punitive damages, multiple damages)?

No, punitive private remedies are alien to Italian law and hardly match civil law system in general. In Italy, private damages are seen exclusively as compensation, and even a penalty clause inserted in a private contract can be subject to judicial review if it is set too high14.

3. PRACTICAL ISSUES

 Are the courts before which actions for damages are brought able to appropriately deal with this kind of cases? Are these courts specialised? Do you support the specialisation of the judges or courts in this field?

As stated above, on September 19, 2005 entered into force Article 134 ICIP granting to specialized divisions of the ordinary first instance court exclusive jurisdiction to deal with both national and EC competition cases, related to industrial property issues. The broadness of application of this provision depends on the interpretation which will be given to the concept of “relating to industrial property issues”. It should be noted that national cases that before the coming into force of Article 134 were left to the jurisdiction of the Corte di Appello, if related to industrial property issues, will now come within the jurisdiction of the Specialised divisions.

Specialised courts are recommendable for the enforcement of competition matters, but the Italian legislator should simplify the rules on jurisdictions, may be recognising the Specilised divisions as competent courts in all national and EC competition matters15.

14 See P. Giudici, Private antitrust law enforcement in Italy, The Competition Law Review, 2004, 1, 61-85. 15 G. Casaburi, La tutela giurisdizionale innanzi al Giudice ordinario nazionale, giornata di studio, tutela giurisdizionale nella politica della concorrenza in ambito comunitario nazionale, Napoli, Università degli Studi Suor Orsola Benincasa, November 18, 2005; E. Tardella, Lo sviluppo del private enforcement: la sfida futura per una più efficace ed estesa applicazione delle norme comunitarie antitrust ... nel segno lasciato da Mario Monti, Economia e politica industriale, 2004, 167.  Do the costs of actions for damages deter the victims of breaches of competition law from bringing such actions? How can these costs be reduced (e.g.: by limiting the sums the claimant has to pay prior to the proceedings, by developing success fees, etc.)?

Pursuant to Article 91 of the Code of Civil Procedure the unsuccessful litigant has to bear the costs of the civil action (so-called loser pays principle). The application of this principle could be problematic in cases in which very small amount of damages are being claimed or in which it is not possible to forecast the outcome of the case. In order to cope with these problems a system based on contingency fees could represent an incentive for it shifts the financial risk from the claimant to the attorney. Alternatively, it should be possible for the judge to grant a protection from costs recovery even if the claimant looses the case or to apply the loser pays principle only in cases where the claimant acted manifestly unreasonable by bringing the action.

4. SPECIFIC ISSUES

International dimension: competent court and applicable law

 In your jurisdiction, can actions for damages be brought by foreign victims, or in respect of breaches of competition law committed abroad? Under which conditions? How can "forum shopping" be prevented?

Foreign victims can bring actions for damages before the Italian courts. Italian jurisdiction is governed by Article 3 of Law 31st May 1995, No. 218. Broadly speaking, Italian courts have jurisdiction where the defendant is domiciled or resident in Italy and pursuant to criteria laid down by EC Regulation No. 44/2001. Pursuant to EC Regulation No. 44/2001 persons domiciled in a Member State may be sued in that State, irrespective of their nationality. Up to the choice of the claimant every person domiciled in a Member State may be sued in the courts of the place where the harmful event occurred or may occur.

 What do you think of arbitration as an alternative means of resolution of actions for damages?

Technically speaking, in Italy arbitration is not considered an alternative means of dispute resolution, but simply a form of private justice. That being said, nowadays the majority of authors tend to recognize that antitrust disputes can be brought before arbitrators. Arbitration may represent an incentive for private damages actions in terms of time saving, although arbitration tends to be more expensive than ordinary claims before the civil courts.

5. CONCLUSION

Generally speaking the basic principles governing the private enforcement of antitrust law in Italy are satisfactory. However, there are a few topics to be modified and improved in order to facilitate the bringing of private actions: elimination of the distinction between courts competent for breach of national competition law and courts competent for breach of EU competition law; introduction of class actions; identification of the criteria for application of the passing on theory; introducing clear rules on the validity of downstream contracts.