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What is the general attitude of business and the authorities to competition compliance?
Compliance with competition law is an important issue for businesses operating in Italy as well as for the Italian Antitrust Authority (IAA). On the one hand, several companies have, in recent years, realised and implemented antitrust compliance programmes (ACPs). On the other hand, the IAA takes a positive stance regarding the antitrust compliance issue, as a preventive and proactive tool as well as a mitigating circumstance pursuant to its Guidelines on the application of the quantification criteria of sanctions ex article 15, paragraph 1, of Italian Competition Law No. 287/90 (Guidelines on Sanctions - see infra).
Government compliance programmes
Is there a government-approved standard for compliance programmes in your jurisdiction?
Even though the IAA encourages companies to establish ACPs, there is no official government-approved standard for compliance programmes in Italy so far. On 20 April 2018, the IAA issued a draft version of new Guidelines on Antitrust Compliance, opening a public consultation, which will be closed within 30 days starting from the publication of the said draft version on the official bulletin of the Authority.
Applicability of compliance programmes
Is the compliance guidance generally applicable or do best practice and obligations depend on a company’s size and the sector of the economy it operates in?
ACPs respond to a ‘one size does not fit all’ logic. Said programmes must be differentiated depending on the case, qualifying as success factors for the companies, especially in the regulatory context following the Modernization Regulation (EC) No. 1/2003, which has revealed that a mere static self-assessment activity of the individual business conduct is not the best tool for managing risks. Therefore, antitrust compliance cannot be standardised, since it must reflect the peculiarities and respond to the needs of each company, allowing the development of an effective compliance policy.
Any tailor-made model will be indicated by common phases that must be articulated in different ways according to the distinctive characteristics of each company, such as the size, the sector, the peculiarities of the market, the organisation, the governance, the knowledge of competition rules and the degree of interaction with competitors. Even small and medium-sized enterprises (SMEs) need an antitrust compliance programme, since the risk of enforcement for breaches of competition law applies to both large and small firms.
The scope and general structure could be different. ACPs of SMEs are undoubtedly less structured than those of large companies, and mainly focused on preventing restrictive competition agreements. Large companies will focus the ACP not only on the prevention of restrictive agreements but also on the assessment of any dominant position.
If the company has a competition compliance programme in place, does it have any effect on sanctions?
In addition to the benefits for companies deriving from the ACPs in terms of awareness of competition and preventing the risks of infringement of the law, the adoption and implementation of effective and concrete ACPs could be relevant in the sanctions policy of the IAA. As established in the IAA Guidelines on Sanctions of 22 October 2014 - the implementation of ACPs is recognised as a possible mitigating circumstance in the assessment of the seriousness of violations of competition rules and, consequently, in determining the relative sanctions.
The mere existence of an ACP is not sufficient to constitute a mitigating circumstance to get a reduction of a fine. Very broad requirements must be met. As specified in paragraph 23 of the aforementioned IAA Guidelines, a strict commitment of the undertaking to respect the programme itself is necessary, by means of: the full involvement of the management; the identification of the personnel referees of the programme; the identification and assessment of risks on the basis of the business sector and the operating context; the organisation of training activities reflecting the economic size of the company; the provision of incentives for employees to comply with the programme as well as penalties in terms of disciplinary sanctions for the violation of the content of the ACP; and the implementation of efficient monitoring and auditing systems.
Considering the above-mentioned conditions, reduction of fines may be granted to companies implementing effective and concrete ACPs.
In recent cases, the IAA has affirmed the existence of a mitigation circumstance deriving from the adoption and implementation of a concrete and appropriate ACP, granting to the parties the following reductions of penalties:
- 5 per cent of the fine (Decision No. 25801 of 22 December 2015; Decision No. 26316 of 21 December 2016; Decision No. 26815 of 8 October 2017); and
- 10 per cent of the fine (Decision No. 25882 of 24 February 2016; Decision No. 26064 of 8 June 2016; Decision No. 26705 of 25 July 2017).
More specific guidance on ACP’s implementation and design, also in view of obtaining a reduction of a fine, is provided in the draft Guidelines on Antitrust Compliance issued by the IAA on 20 April 2018, which, however, are not yet definitive.
Implementing a competition compliance programme
Commitment to competition compliance
How does the company demonstrate its commitment to competition compliance?
For the time being, in the absence of specific guidance to demonstrate the company’s commitment to competition compliance, evidence of such commitment may be deduced from a board resolution affirming the adoption of an ACP, including an antitrust compliance manual and guidelines for employees and messages from senior management to staff (tone from the top) confirming the need to comply with competition law as a prerogative for the improvement of the business. In short, taking a public and strong position stressing that competition compliance is a key feature of the undertaking, putting in place training activities to ensure that employees are aware of antitrust issues and setting up internal controls as an effective oversight system (ie, referees for the ACP), as well as disciplinary sanctions for the breach of the pertinent rules, constitute effective measures to prove the commitment of the company to competition compliance.
What are the key features of a compliance programme regarding risk identification?
The key features of a compliance programme regarding risk identification regards internal processes aimed at detecting any possible competition law infringement. The risks faced by companies may be identified in:
- contacts with competitors (directly or through trade associations);
- contract structures imposing specific price mechanisms, partnerships or joint selling or purchasing arrangements;
- managing confidential information; and
- having large market shares in the relevant markets wherein the company operates.
Regular audits of specific functions of the company, which are exposed to antitrust risks (ie, marketing, sales, etc) as well as mock dawn raids, in terms of simulation of antitrust authorities’ investigations, are recommended. Moreover, a well-established whistle-blower system helps employees to report the antitrust risks they identify on an anonymous basis, allowing the company to take a prompt and efficient measure to solve the problem, with the participation of the referees of the compliance programme.
What are the key features of a compliance programme regarding risk assessment?
The assessment of the risks depends on the seriousness of the risks themselves considering also the potential consequences in case of risk materialising. For a correct assessment, the market contest in which the undertaking operates must be evaluated, as well as the size of the company and the impact of its conduct on competition.
If informing and instructing the employees on how, to whom and when to communicate potential risks is sufficient to alert them, the intervention of external lawyers with specific expertise in competition law permits the company to conduct a global and effective assessment. In collaboration with the in-house lawyer, interviews with company personnel help to identify what prima facie does not seem a proper antitrust risk and permits the company to assess the problems and react appropriately to them through the planning of several activities, part of the risk-mitigation phase of a compliance policy.
What are the key features of a compliance programme regarding risk mitigation?
To reduce the risk of infringement of competition law, companies should ensure that employees are informed, trained and aware of the antitrust rules and internal policies to comply with them. Regular training sessions for employees dealing with antitrust issues, tailored on how the rules apply in practice to their day-by-day activities, are fundamental means of maintaining awareness of the relevance of competition law to the business and to improve the knowledge of competition compliance. Compliance codes, guidelines and checklists, collected in handbooks available for the company personnel, allow a continuous update on competition law. For better efficiency, ACPs must foresee disciplinary sanctions for employees not respecting the rules. Such sanctions must be drafted according to labour law provisions, in collaboration with the human resources department, and must reflect the commitment taken by the company to comply with competition law. Any disciplinary sanction must be applied after a necessary assessment of the infringement and according to the seriousness of the same, as well as the level of involvement of the employee in the infringement itself.
Compliance programme review
What are the key features of a compliance programme regarding review?
A key feature is the continuous adjustment of ACPs to legal and economic developments. In fact, the update must consider any changes in business needs, the evolution of the company’s business, the market environment, as well as the constantly evolving industry regulations and the related practice and jurisprudence called to interpret the antitrust principles.
Monitoring and reviewing involves internal company audit personnel and should be carried out especially during events creating potential risks for the company (ie, acquisition or constitution of joint ventures).
Dealings with competitors
Arrangements to avoid
What types of arrangements should the company avoid entering into with its competitors?
Article 2 of the Law No. 287/90 (the Law) prohibits the same conduct indicated in article 101 Treaty on the Functioning of the European Union (TFEU), namely agreements or concerted practices between undertakings, and any decisions taken by consortia, associations of undertakings and other similar entities, which have as their object or effect an appreciable prevention, restriction or distortion of competition. Article 2 of the Law also contains a list of prohibited conduct - clearly not exhaustive - that is identical to the one laid down in article 101 TFEU.
The main difference between the national and the EU provisions concerns, obviously, the scope of application ratione loci, provided that article 2 of the Law applies to agreements affecting competition within the national market or within a substantial part of it.
What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?
Several precautions may be taken to manage competition law risk, ranging from information firewalls to protection of data rooms, in case of transactions between competitors. Attention should be paid to the possible exchange of sensitive information.
What form must behaviour take to constitute a cartel?
While the concept of ‘cartel’ generally indicates, in the strict sense, the most serious conduct infringing the competition rules, both article 101 TFEU and article 2 of the Law refer to three different types of conduct: agreements between undertakings, decisions by association of undertakings, and concerted practices.
These notions have been interpreted broadly both at EU and at national level, so that in principle any kind of concerted activity between independent undertakings may result in a conduct infringing article 101 TFEU or article 2 of the Law, provided that such activity has as its object or effect the prevention, restriction or distortion of competition.
To establish an infringement of article 101 TFEU or of article 2 of the Law, the core element is the behaviour of the parties, and not the form of the agreement or practice adopted by the undertakings concerned.
Under what circumstances can cartels be exempted from sanctions?
The circumstances under which an agreement, a decision of an association of undertakings, or a concerted practice can be exempted from sanctions, at national level (article 4 Law), are the same as those laid down in article 101(3) TFEU.
In practice, exemptions from sanctions are very rare with reference to the agreements and concerted practices that are restrictive by object.
As is well known, the entry into force of Regulation (EC) No. 1/2003 determined the abolition of the prior notification and authorisation system at EU level. Such mechanism is still admitted in the Law, with reference to conduct falling exclusively within the scope of the Law, but it has an extremely limited application. Therefore, undertakings are called upon to carry out a self-assessment of the compatibility of their conduct with article 101 TFEU and article 2 of the Law.
Can the company exchange information with its competitors?
The admissibility of the exchange of information between competitors is evaluated by the IAA in accordance with the European Commission Horizontal Guidelines (OJEU, C 11 of 14 January 2011, p. 1).
In general terms, the exchange of information is admitted, unless it constitutes the undermining of the necessary autonomy and independence of each undertaking in determining its conduct on the market. As stated in the Commission’s Guidelines (section 58), the competitive outcome of information exchange varies according to the characteristics of the market concerned, as well as on the kind of information that is exchanged.
Among the types of information considered competitively sensitive, mention can be made of information concerning, inter alia: prices charged, contractual terms, quantities sold, number of customers served, and export.
An exchange of information can also take the form of a public announcement or statement (see, for instance, the recent IAA decision No. 26733 of 2017 in the RC Auto case).
Cartel leniency programmes
Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?
Since February 2007, the IAA has adopted a Leniency Programme based on the European Leniency Notice model, to contribute to the effectiveness of public antitrust enforcement in Italy.
The Italian legal order provides, on the one hand, full leniency, namely the granting of the non-application of sanctions, for the undertaking that first decisively cooperates with the IAA in finding a secret cartel; on the other hand, partial leniency, namely the reduction of fines, which shall be granted to companies that later provide a significant contribution to this end. Immunity from fines will be granted to the undertaking that first submits information or evidence on a voluntary basis, provided that the IAA considers such evidence or information decisive for the finding of an infringement, or had not already gained sufficient information or evidence to prove the alleged infringement.
To obtain full leniency, the applicant must end its participation in the alleged cartel immediately following its application, except for the fact that, in the Authority’s view, its continued involvement would be reasonably necessary to preserve the integrity of the Authority’s investigations. Moreover, the applicant shall cooperate genuinely, fully and on a continuous basis from the time of its application with the authority until the conclusion of the case. Finally, the applicant is obliged not to reveal the fact or any of the content of its leniency application prior to the IAA’s notification of its statement of objections to the parties.
As to the requirements for partial leniency application, on the other hand, the fine may be reduced for undertakings that provide evidence that represents, in the IAA’s opinion, a significant added value for the investigation.
Can the company apply for leniency for itself and its individual officers and employees?
Only undertakings may benefit from a leniency programme, not individuals as such.
Can the company reserve a place in line before a formal leniency application is ready?
The IAA Leniency Programme provides for a marker system that protects the applicant’s place in the queue for a given period, allows it to gather necessary information and evidence to qualify for immunity. The IAA may decide in what situation to grant a marker.
Where a marker is granted, the IAA determines the period within which the applicant must conclude the marker, namely to submit the information and evidence required to meet the relevant evidential threshold for immunity. The period in question is usually that of two or four weeks.
If the company blows the whistle on other cartels, can it get any benefit?
The disclosure of information about participation in another cartel, distinct from the one that is the subject of its first leniency application, does not provide any benefit for the disclosing infringer.
Dealing with commercial partners (suppliers and customers)
What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?
There are no specific rules on vertical restraints under Italian law. The European Block Exemption regulation on vertical agreements (BER 330/2010) applies to agreements that do not contain the hardcore restrictions or other excluded obligations, provided that market share of both the parties involved is below 30 per cent.
As a general rule, restrictions on resale price, territory and customers, sourcing, exports and parallel imports are considered anticompetitive. Selective and exclusive distribution, as well as franchises, are also monitored.
Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?
Vertical agreements are considered less harmful than horizontal agreements. However, such agreements violate article 101(1) TFEU and article 2 of the Law if they contain hardcore restrictions.
Every restraint needs a case-by-case assessment.
Under what circumstances can vertical arrangements be exempted from sanctions?
Vertical agreements can be exempted if they fall within the scope of the De Minimis Notice or BER, or other specific BERs. The exemption set out in the De Minimis Notice applies to agreements in circumstances when the market shares of the parties do not exceed 15 per cent of any affected market; the Verticals BER applies if the market shares of the supplier and buyer do not exceed 30 per cent on the respective markets of the parties.
Such exemptions apply in the absence of the aforesaid hardcore restraints.
How to behave as a market dominant player
Determining dominant market position
Which factors does your jurisdiction apply to determine if the company holds a dominant market position?
The IAA relies on the traditional notion of dominance applied at European level and therefore acts in accordance with the European Law and case law.
A dominant position pursuant to article 3 of the Law, featuring the same content of article 102 TFEU, is a position of economic strength enjoyed by a company; such position enables said company to prevent effective competition on the relevant market, as it gives the company the power to behave independently with respect to its competitors, customers and ultimately, the final consumers.
To evaluate the dominant position of a company, the IAA usually carries out a comprehensive analysis of different elements, such as market shares, structure of the market, existence of barriers to entry, characteristics of the product, level of production and countervailing buyer power of customers.
Abuse of dominance
If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance? Describe any recent cases.
Article 3 of the Law does not define the concept of abuse of dominance but only lists examples of abusive behaviour that relate to both exploitative and exclusionary practices.
Said rule provides a non-exhaustive list of some examples of abuse, stating that it is prohibited:
- to directly or indirectly impose unfair purchase or selling prices or other unfair contractual conditions;
- to limit or restrict production, market outlets or market access, investment, technical development or technological progress;
- to apply to other trading partners objectively dissimilar conditions for equivalent transactions, thereby placing them at an unjustifiable competitive disadvantage; or
- to conclude contracts subject to acceptance by the other parties of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of such contracts.
Abuse of dominance occurs when an undertaking in a dominant position engages in practices that influence the structure of a relevant market by reducing, hampering or eliminating competition. The simple dominant position on a relevant market does not constitute an abuse, but the dominant firm holds a ‘special responsibility’ not to allow distorting effects on the competitive structure of the market.
Abuse of dominance is defined more in terms of the effects of a conduct on the market rather than in relation to the form or type of conduct.
Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?
From a subjective point of view, the only exemption regards undertakings that, by law, are entrusted with the operation of services of general economic interest, or operate on the market in a monopolistic situation, only so far as this is indispensable to perform the specific tasks assigned to them (see article 8, paragraphs 1 and 2, of the Law).
From an objective point of view, following the EU principles, the IAA could consider, as justification, efficiencies that are sufficient to guarantee that no real harm to consumers is likely to arise. In this context, the dominant undertaking shall demonstrate that:
- the efficiencies have been, or are likely to be realised as a result of the conduct;
- the conduct is indispensable to the realisation of those efficiencies;
- the likely efficiencies brought about by the conduct outweigh any likely negative effects on competition and consumer welfare in the affected markets; and
- the conduct does not eliminate effective competition, by removing all or most existing sources of actual or potential competition.
In any event, when exclusionary intent is shown, efficiencies may not be used as a defence.
Competition compliance in mergers and acquisitions
Competition authority approval
Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?
Should mergers and acquisitions meet the relevant jurisdictional thresholds, provided by article 16 of the Law, the notification to the IAA is mandatory, even if transactions have little or no effects on the relevant market.
The Italian Antitrust Law (recently modified with Law No. 124/2017) provides that a concentration must be prior notified to the IAA when: (i) the aggregated turnover, achieved at national level by all the companies involved in the operation, is more than €495 million; and (ii) the turnover achieved individually at national level by at least two of the companies involved in the operation is more than €30 million. It should be noted that these thresholds are exclusively based on nationwide revenues realised by the parties involved in the transaction.
The jurisdictional thresholds are revised yearly by the IAA to reflect the gross domestic product (GPD) deflator index.
In case of acquisition of joint control and of a joint venture notification, the notification is up to the undertaking that acquires control; in case of mergers, it is up to each merger party; and in case of public takeover bids, it is up to the bidder.
The transactions shall be notified prior to their implementation. Under the Italian law, there is no so-called standstill obligation: parties to a transaction may theoretically implement the transaction after they have notified the operation to the Authority without waiting for the IAA’s clearance (the parties face the risk of a possible prohibition decision by the Authority). In exceptional cases, the IAA may order the suspension of implementation of the transaction pending its assessment.
How long does it normally take to obtain approval?
The IAA has a 30-day term from the notification for the clearance (the said term is reduced to 15 days in case of public takeover bids).
Should the IAA deem that an in-depth investigation is needed, the Authority does not issue a decision of inapplicability of the law or a decision to clear the transaction, the second (investigation) phase is started with a formal decision served upon the parties.
The IAA must adopt the final decision within 45 days from the said decision; this term may be extended for no more than 30 further days in the event that the parties have failed to provide information that has been requested by the Authority. Therefore, in the case of opening of the second phase, the overall timeline for clearance is generally 75 calendar days from receipt of the formal notification.
To speed up the proceedings, the parties can engage in pre-notification discussions with the IAA by contacting the Authority at least 15 days prior to the formal notification of the transaction and providing the relevant information.
If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?
The applicable law does not include express provisions relating to ancillary restraints.
However, the standard notification form contains a specific section where the notifying parties have to indicate if ancillary restraints are included in the operation’s agreements and, if yes, they have to explain why they are to be considered to be directly related to, and strictly necessary for, the implementation of the concentration.
The IAA assesses such ancillary restraints based on the principles laid down by the European Commission. In the final decision, it will be indicated whether (and to what extent) the notified restrictions can be considered ancillary to the concentration.
Failure to file
What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?
Article 19 of the Law lays down two kinds of administrative fines in case of implementation of a prohibited transaction (paragraph 1) and of failure to file a relevant transaction (paragraph 2).
The failure to file a transaction may lead to imposition of an administrative fine to the undertakings responsible for notification, up to 1 per cent of the undertaking’s turnover in the financial year preceding the missing notification.
The IAA can also decide to revoke its decision to clear the transaction and to impose fines for any failure to observe the prescribed measures.
With reference to the failure to notify, the IAA has recently applied fines in a few cases: three in 2013, two in 2015 and one in 2016 (C11742 - Puma/Dobotex; C11808 - Marfin-Acosta/Investment Services; C11913 - Esselunga/Co.Ge.Man; C11960 - Cooperativa Esercenti Farmacia/Farfin-Socrefarma; C11961 - Cooperativa Esercenti Farmacia/Al-Pharma; C11072B - Moby/Toremar).
It has to be recalled that sanctions may be imposed also in case of false information provided by the parties, as well as in case of refusal or failure to provide the required information.
Investigation and settlement
Under which circumstances would the company and its officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?
The IAA does not require a separate legal representation of the company and its officers or employees. The IAA counterparty is the undertaking itself and not its personnel materially putting in place the antitrust infringement.
Individual employees of the company can be prosecuted if the antitrust infringement constitutes a violation of criminal law (ie, bid rigging). In such cases, a separate legal representation is needed for said employees before the criminal courts.
For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?
Pursuant to article 14(2) of the Law as well as article 10 of Decree of the President of the Republic 217/1998, the IAA may - at any stage in the investigation - conduct inspections of the undertaking’s books and records and make copies of them, with the cooperation of other government agencies where necessary.
During a dawn raid, the IAA officials may:
- inspect business premises and means of transport of the undertaking concerned;
- seize and make copies of all documents (on legal privilege see below) located in the companies’ premises;
- require anyone on the premises to produce documents that the officers consider relevant for the investigation;
- provide an explanation of documents;
- ask for information on facts related to the object of the investigation; and
- examine and collect information and data from mobile terminals, portable devices and relative servers.
On the companies’ side, there are no specific and approved rules for facing a dawn raid.
What are the company’s rights and obligations during a dawn raid?
Undertakings under inspection are obliged to comply with basic requests, as - for instance - blocking the business activities, not hindering the movement of the IAA officials. Companies must cooperate during an inspection. However, they are not obliged to support the IAA investigation, in the sense that employees may decide to remain silent in case they are not sure about the questions asked. In any case, extreme collaboration with the officials of the Authority is advisable, to avoid possible administrative fines.
Private or legally privileged documents may not be seized by the IAA. Attorney-client privilege applies only to correspondence between clients and external counsel, but not to correspondence between in-house counsel and staff. It is the duty of the company personnel under inspection to identify personal and privileged documents, also with the help of the (EU) external lawyer assisting at the dawn raid. To establish that a document is privileged, the IAA may want to see at least the letterhead (or sender email address) as well as the subject line of the email.
In short, three conditions need to be met for denying IAA access to information of the company:
- the information must be confidential advice;
- the advice must have been provided by external legal counsel; and
- the external legal counsel must be from an EU member state.
Moreover, companies have the right to legal advice. The IAA officials can wait for a ‘reasonable time’ to enable the external lawyer to come to the companies’ premises to assist the company during the dawn raid procedure.
Is there any mechanism to settle, or to make commitments to regulators, during an investigation?
Italian law does not provide for a mechanism to settle during an investigation conducted by the IAA.
Pursuant to article 14-ter of the Law, introduced in 2006, within three months from the notification of the launch of an investigation, undertakings may offer commitments aimed to correct the anticompetitive conduct that is the subject of the investigation. The Authority may, after having assessed the suitability of such commitments, make them binding for those undertakings and close the proceeding without ascertaining the infringements.
If commitments are not apt to avoid the offences inquired into, the Authority rejects them. If the commitments are not ungrounded, within 45 days of the expiration of the above-mentioned term of three months, they are published on the Authority’s website. Within 30 days of the publication, third parties may present observations; within a further term of 30 days, the undertakings may reply or modify their commitments, based on the observations of third parties. Except for specific inquiry needs, the whole proceedings must be closed within three months of the publication of the commitments.
What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?
Are corporate monitorships used in your jurisdiction?
According to Italian law, corporate monitorships are not governed by any specific rule.
Nevertheless, in some cases, the IAA has accepted the appointment of a monitoring trustee, characterised by high-level professional qualifications and independence, with the purpose of implementing (and, rarely, monitoring) some or all the commitments offered by the parties during the proceedings (see IAA, 13 July 2011, No. 22590; IAA, 13 July 2012, No. 23739; IAA, 21 June 2012, No. 23670; IAA, 3 September 2015, No. 25609). In other cases, a monitoring trustee was appointed by the parties in the proceedings with the purpose of evaluating, from a technical point of view, the result of the implementation of the commitments undertaken during the proceeding (see IAA, 28 October 2014, No. 25160).
Statements of facts
Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class actions or representative claims?
As anticipated, the Italian system does not provide or regulate a settlement procedure.
In any case, follow-on actions, promoted before Italian courts, may concern settlement decisions issued by the EU Commission or by another National Antitrust Authority.
Settlement decisions, being issued after simplified and accelerated proceedings, are not characterised by the same analysis of the facts and of all the other evaluative elements as the decisions issued after ordinary proceedings. Moreover, settlement decisions do not contain any statement about the effects of the infringement and detailed description of the infringement’s factual background.
These characteristics have some relevant consequences in terms of burden of proof in the subsequent follow-on actions: future plaintiffs are not aware of important factual circumstances necessary to obtain damage compensation and they will have to demonstrate the existence of the alleged damages deriving from the infringement.
In view of the above, the statements contained in settlement decisions cannot be automatically admitted as evidence in different and separate civil proceedings; on the contrary, a case-by-case assessment is necessary.
Invoking legal privilege
Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?
The IAA right to require factual explanations of documents or facts cannot compel a company to provide answers that would involve the admission of an infringement of competition law. For this purpose, any legally privileged documents cannot be seized by the IAA, and an employee requested to provide relevant information attesting the full involvement of the company in the infringement may remain silent or ask the IAA to postpone the answer, which will be given in writing.
What confidentiality protection is afforded to the company or individual involved in competition investigations?
The IAA has established that confidential data or documents (collected during an IAA inspection or attached to a reply of an IAA request for information) may be ordered to be kept secret at the request of a party. Companies involved in IAA proceedings and wishing to safeguard the confidentiality or secrecy of information supplied shall submit a specific request to this end to the Authority’s offices, specifying the reasons for the request.
Refusal to cooperate
What are the penalties for refusing to cooperate with the authorities in an investigation?
Pursuant to article 14, paragraph 5, of the Law, the IAA may sanction anyone who refuses or fails to provide information or documents during an investigation without a valid justification. The fine can be up to €25,822, and can be increased up to €51,645 in the event that untruthful and inaccurate information or documents are submitted, in addition to any other penalties provided by the law.
Is there a duty to notify the regulator of competition infringements?
What are the limitation periods for competition infringements?
The limitation period is five years, starting from the day on which the infringement was committed or, in case of continuous infringements, from the day on which the infringement has ceased.
Are there any other regulated anticompetitive practices not mentioned above? Provide details.
Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?
There are currently no proposals for competition law reform under discussion.
Updates and trends
Updates and trends
Updates and trends
Over the past few years, an increasing number of companies have implemented ACPs, in particular after the introduction, in the IAA’s Guidelines on sanctions, of the above-mentioned possibility of benefiting from a reduction of sanctions if a company has implemented an ACP in line with the European and national best practices.
This trend, which is encouraged also by the recent practice of the IAA, has to be welcomed, as it ensures the dissemination of an ‘antitrust culture’, while effectively preventing and reducing the antitrust risk.
On the other hand, companies increasingly express the need for legal certainty regarding the proper conditions for implementation and design of ACPs. Recently, this stance has been duly considered by the IAA, which, as anticipated, on 20 April 2018 issued a draft version of the Guidelines on Antitrust Compliance, providing specific and detailed guidance on the structure of ACPs. Following the conclusion of the public consultation, within 30 days starting from the publication of the draft Guidelines on the IAA’s bulletin, the Authority will adopt the final version of the Guidelines, thus significantly increasing legal certainty and uniformity of application with reference to ACPs.