Following a public consultation on 31st October 2014, the Italian Competition Authority (the “ICA”) finally approved new guidelines on the calculation of fines for infringements of Italian and European Union competition provisions.
The Guidelines establish that the calculation of the fine will start with a basic amount while the final sum shall have to take into account any aggravating or mitigating circumstances. However, the final sum shall not in any event exceed 10% of the company’s total turnover in the preceding business year, as provided by Section 15 of the Law No. 287 of 1990 (i.e. the Italian Law on Competition).
According to the Guidelines, in determining the basic amount of the fine the ICA shall consider the value of the sales of goods or services directly or indirectly related to the alleged anti-competitive conduct, made by the involved company over the last business year and for the duration of the alleged infringement.
For hard core restrictions of competition such as price fixing, market sharing and output limitation, the basic amount will not be lower than 15% of the proportion of the company’s value of sales as explained above.
Once the basic amount is determined, this can be increased or decreased depending on specific aggravating or mitigating circumstances.
In cases of aggravating circumstances the basic amount of the fine can be increased:
- Up to 50% when the company involved has achieved a significant worldwide turnover or belongs to a large group of companies.
- Up to 100% when the company involved has committed a similar infringement in the previous five years (also if it has been sanctioned by the European Commission).
- On the basis of the percentage of the profits achieved by the accused company as a result of the alleged infringement.
On the contrary, when mitigating circumstances are present, the basic amount of the fine can be decreased:
- When the company involved has adopted and diligently enforced a specific and suitable compliance program.
- Up to 50% if during the investigation the accused company provides information and/or documents capable of producing a further competition law prosecution (so called “amnesty plus”).
The Guidelines go on providing for a specific derogation from the method of calculation based on the value of sales in cases of public tenders. In particular, it is stated that the value of the sales shall be considered as equal to the amount needed for winning the tender. However, the ICA can always take into account the overall value of the sales in relation to the whole market concerned.