Competition Litigation 2009
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The International Comparative Legal Guide to: Competition Litigation 2009 A practical insight to cross-border Competition Litigation Published by Global Legal Group with contributions from: Accura Egorov Puginsky Afanasiev & Partners Shepherd and Wedderburn LLP Allen & Overy Luxembourg Eugene F. Collins SJ Berwin Gernandt & Danielsson Advokatbyrå KB Andrékó Linklaters Soltysinski Kawecki & Szlezak, Legal Advisors, L.P. Kaye Scholer LLP Ashurst LLP Stibbe Kim & Chang Barcellos Tucunduva Advogados v Stikeman Elliott LLP Kronbergs & Cukste Boga & Associates Thommessen Krefting Greve Lund AS Linklaters bpv Hügel Rechtsanwälte Vasil Kisil & Partners Lovells LLP v Cechová & Partners MAQS Law Firm Vejmelka & Wünsch Cleary Gottlieb Steen & Hamilton LLP O'Melveny & Myers LLP Walder Wyss & Partners Ltd. Clifford Chance, S.L. Pachiu & Associates Webber Wentzel Dittmar & Indrenius Sérvulo & Associados White & Case LLP www.ICLG.co.uk Chapter 19 Italy Mario Siragusa Cleary Gottlieb Steen & Hamilton LLP Marco D’Ostuni 1 General incidentally to consider matters involving the application of national competition law. Courts of appeals have exclusive jurisdiction on national 1.1 Please identify the scope of claims that may be brought in Italy for breach of competition law. competition law cases. According to a recent and solidly-reasoned court order, the courts of appeals should decline jurisdiction over With respect to breaches of EC or national competition law, infringements falling within the scope of EC competition law according to the circumstances, plaintiffs may seek interim relief, (Milan Court of Appeals, 15-24 May 2007). However, there is prior damages, declaratory relief (e.g., that an agreement hindering judicial precedent to the contrary. competition is null and void or that certain conduct is legal or Pursuant to Articles 120 and 134 of the 2005 Code of Industrial illegal) or restitution (e.g., of the overcharges paid as a result of the Property Rights, private actions based on EC or national breach). Defendants may also challenge the enforceability of competition law and relating to the exercise of industrial property anticompetitive agreements. rights must be lodged with the sections specialising in industrial property rights instituted within the competent civil courts. 1.2 What is the legal basis for bringing an action for breach of Courts of first instance (Tribunali) have jurisdiction on competition law? representative damages or restitution actions brought by consumer associations with respect to competition law infringements. Actions for breach of EC competition law are based directly on Articles 81 and 82 of the EC Treaty. Article 33(2) of Law No. 287 1.5 Who has standing to bring an action for breach of of 1990 (i.e., the Italian competition law) provides a legal basis for competition law and what are the available mechanisms private actions for breach of national competition law. Moreover, for multiple claimants? For instance, is there a possibility all private actions for breach of competition law are generally of collective claims, class actions, actions by governed by contract law or civil liability principles. representative bodies or any other form of public interest litigation? 1.3 Is the legal basis for competition law claims derived from Any legal or natural persons who suffered damages due to a breach international, national or regional law? of competition law have standing to bring an action before the Italian courts, provided they have an actual interest in doing so As reported above, the legal basis for competition law claims derive (Court of Cassation, 4 February 2005, No. 2207). both from EC and national competition law. Articles 2 and 3 of Law No. 287 of 1990 mirror Articles 81 and 82 EC and, in The Italian Parliament has recently allowed representative damages principle, apply only to infringements falling outside the scope of or restitution actions on behalf of consumers with respect to, among EC law (i.e., conduct which is not likely to restrict intra- other things, breaches of competition law (Law No. 244 of 2007, Community trade). Article 2, para. 446). The standing to bring such actions has been recognised only to qualified associations of consumers (registered with the Ministry for Economic Development) or to ad hoc 1.4 Are there specialist courts in Italy to which competition committees that are adequately representative of the collective law cases are assigned? interests they seek to protect. The new law provides for a two-step procedure, with an initial phase for a judicial assessment of the In Italy, private competition law litigation is not assigned to a single defendant’s liability, and a subsequent phase for the quantification specialist court. of damages owing to the individual consumers or users who have Private actions based on EC competition law must be brought opted into the collective action or have otherwise intervened in the before the lower civil courts (Giudici di pace and Tribunali), proceedings. The new law is currently expected to become pursuant to general civil procedure rules. Lower civil courts are effective as from July 1, 2008. also competent to decide on unfair competition cases based on competition law principles, as well as to apply special competition 1.6 What jurisdictional factors will determine whether a court rules on telecommunications and broadcasting or national is entitled to take on a competition law claim? legislation on abuses of economic dependence. Furthermore, in the course of ordinary legal actions, lower civil courts may have Private actions based on EC or national competition rules may be 103 ICLG TO: COMPETITION LITIGATION 2009 WWW.ICLG.CO.UK © Published and reproduced with kind permission by Global Legal Group Ltd, London Cleary Gottlieb Steen & Hamilton LLP Italy brought before Italian courts if they refer to infringements taking agreements. place or producing effects in the Italian territory. Civil courts have no power to enjoin antitrust infringements In order to identify the territorially competent court, general civil permanently in their final judgments. procedure rules provide that, if the defendant is a natural person, damages action may be brought before the court of his place of 3.2 If damages are an available remedy, on what basis can a residence or domicile; whereas if the defendant is a company, court determine the amount of the award? Are exemplary damages actions may be brought before the court of the place where damages available? the company has its headquarters, or a branch and an agent authorised to act for it in court proceedings. In addition, regardless Italy Plaintiffs may be granted damages only to compensate for the harm of the nature of the defendant, a claim for damages may also be actually incurred, i.e., for ‘out of pocket’ loss, loss of profits and brought before the court of the place where the alleged obligation interest thereon. Accordingly, punitive or exemplary damages are arose or must be performed (i.e., depending on the circumstances, not available and are deemed to be contrary to Italian principles of the place where the allegedly restrictive agreement was executed or, public order. in actions for damages based on torts, the place where the wrongful Where the existence of the damage has been established but it is conduct took place or the harm occurred, which may be the objectively impossible or significantly difficult to prove precisely its residence or headquarters of the plaintiff). amount, the court may award a fair estimate of damages. The judge Special rules apply for consumer actions, which may be brought may also request the assistance of an expert to quantify the damages. before the court of the place of residence or domicile of the In Italy, plaintiffs have often obtained damages for breaches of consumer. Finally, representative actions must be brought before competition law. The following are among the most notable cases. the court of the place where the defendant has its headquarters. In Telsystem, damages were awarded to a potential new entrant into the leased lines market, whose market access had been prevented by 1.7 Is the judicial process adversarial or inquisitorial? the incumbent telecom operator’s refusals to supply leased-line interconnectivity. The court commissioned an expert’s report to The civil judicial process in Italy is adversarial. calculate the plaintiff’s loss of income (Milan Court of Appeals, 18 July 1995 and 24 December 1996). The damage liquidation was 2 Interim Remedies based, inter alia, on the principle that in a free-market economy monopolist rents, such as that of a first mover on the market, eventually tend to be neutralised by competition. 2.1 Are interim remedies available in competition law cases? In x-DSL/x-SDH several data transmission operators and Internet providers claimed loss of income due to the incumbent telecom Yes, interim remedies are available in competition law cases. operator’s refusal to supply them with wholesale x-DSL/x-SDH services at reasonable prices (Rome Court of Appeals, 11 December 2.2 What interim remedies are available and under what 2002 and 11 September 2006). In order to quantify damages, the conditions will a court grant them? court multiplied the plaintiffs’ market shares in a neighbouring market by the dominant company’s turnover obtained from the Plaintiffs may apply for the adoption of any interim measure that provision of retail x-DSL/x-SDH services and awarded damages at appears to be the most suited remedy to guarantee provisionally the 10 percent of the resulting amount. effectiveness of the final judgment in the case. In Bluvacanze, to award lost income to a travel agency, the court Interim measures can only be granted if the plaintiff brings evidence confronted the turnover achieved by the claimant before and after the of a prima facie case and proves that its rights are likely to be collective boycott it had been put through by several tour operators irreparably damaged during the course of ordinary civil proceedings.