Enforcement policies and guidancei The notion and ban of cartels
The prohibition of cartels is provided by Article 2 of Law No. 287/90, the Italian antitrust law (IAL). This provision, which largely resembles Article 101(1) of the Treaty on the functioning of the European Union (TFEU), prohibits agreements between undertakings, concerted practices or decisions by associations of undertakings that have as their object or effect the prevention, restriction or distortion of competition within the national market or a substantial part of it. The Italian Antitrust Authority (IAA) is the independent agency entrusted with the public enforcement of the cartel prohibition set out in Article 101(1) of the TFEU.
Cartels are not defined but typically include arrangements between competitors clearly aimed at substantially restricting competition, such as by fixing prices, limiting production, sharing markets and customers and bid rigging. Since such arrangements are by their very nature harmful to the proper functioning of competitive markets, they are considered restrictions of competition 'by object', and, therefore, a full analysis of their effects is not required, although – as we will see – the economic and legal context in which they happen remain a central element for their assessment. Cartels are thus punished as per se restrictions.
It is worth noting that the IAA has been a pioneer within the EU in adopting a fairly rigid approach to the assessment of cartel-like behaviour in relation to 'pure' exchanges of sensitive information between competitors, which may be deemed in Italy as per se restrictions, even when they do not concern future prices or volumes, or both. The relevant case law includes two landmark cases dealing with indirect exchanges of information in the insurance business, namely RC Log and IAMA Consulting.2 These cases have been followed by recent IAA precedents,3 amongst which are the Cars financing and Bars for reinforced concrete cases.4 Moreover, the IAA has been in the past years particularly active with regard to anticompetitive behaviour in the context of public tenders for goods or services5 as well as for the award of concession of public services, treating such practices as cartels not only when dealing with clear bid rigging agreements, but also for less obviously illegal behaviour (such as temporary bidding consortia grouping participants that would have each otherwise been capable of participating alone in the tender).6
While there is no general guidance on cartels in the IAA's soft law, in 2014 the IAA adopted guidelines on the method for setting fines in relation to antitrust infringements, which are particularly relevant for cartels. Moreover, in 2018 the IAA adopted compliance programmes guidelines which are to be read in close connection with the leniency programmes (see Section I.ii). Finally, in 2020 the IAA issued a notice providing guidelines on the assessment of cooperation agreements in the context of the covid-19 pandemic, focusing on temporary cooperation agreements aimed at favouring the production and distribution of essential services and goods that may be subject to shortages due to a sudden rise in demand, in particular in the agri-food and health sector. While there is no departure from the general prohibition of cartels, the notice provides some informal guidance on the conditions under which cooperation between competitors can be lawful (and to our knowledge such guidance has been provided in practice).ii The leniency programme
Under the IAL, the IAA is authorised to set up a national leniency programme in accordance with EU law. On 15 February 2007, the IAA adopted its Leniency Notice.7
According to the Leniency Notice, full immunity from a fine is available to the first cartel participant that spontaneously reports a collusive arrangement, providing the IAA with qualified information or documentary evidence, or both. Subsequent applicants may instead obtain fine reductions, depending on how they 'rank' in their order in approaching the IAA. All parties remain subject – as explained in Section IV – to a qualified cooperation in order to obtain and retain those benefits.iii The enforcing authorities
The IAA is responsible for the public enforcement of competition law. The IAA is also the only venue for immunity applications.
The TAR (Regional Administrative Tribunal) Lazio in Rome has exclusive jurisdiction over appeals on decisions of the IAA. The applicant lodges its appeal before the TAR Lazio within 60 days of the notification of the challenged decision. Decisions subject to such judicial review include decisions dismissing a complaint and decisions closing the case without the finding of an infringement, for example, by accepting commitments from the investigated parties. By contrast, as a general rule, procedural decisions of the IAA must be challenged as part of the appeal concerning the IAA's final decision.
Judgments of the TAR Lazio may be further appealed before the Italian Supreme Administrative court within 30 days of notification of the judgment or three months from its publication.
Antitrust law can also be enforced before civil courts. The specialised business divisions of the Courts of Milan, Rome and Naples enjoy exclusive jurisdiction in Italy over actions based on antitrust law.