On 31 October 2014 the Italian Competition Authority (ICA), after a public consultation, adopted the new guidelines on the method of setting antitrust fines for infringements of Italian and EU competition law.
The guidelines reflect the structure of the Commission’s guidelines - as the first part deals with the basic amount of the fine, while the second addresses the adjustments to the base amount according to a set of explicated criteria in order to define the final penalty - but introducing two special provisions: one increases the relevance of the adoption and enforcement of the antitrust compliance programmes while the other affects the international companies with a significant economic dimension, also if the Italian turnover is not relevant.
Below are the most interesting provisions included in the guidelines:
- Similarly to the EC guidelines the base amount of the fine is calculated by multiplying a percentage of the value of sales of the goods or services which relate directly or indirectly to the infringement, during the last full business year of the company's participation in the infringement, for the year of duration of the violation. For cases involving trade associations, the ICA will utilize, as parameter for the value of sales, the total value of membership fees paid by the members of the association.
- The percentage applied to the value of sales is determined according to the seriousness of the violation up to a maximum of 30% of the value of sales.
- Regarding more serious restrictions, the ICA may add to the base amount a so-called 'entry fee' that is an additional 15-30% of the value of sales.
- For more serious infringement, namely price fixing, market sharing, and limiting production illicit agreements, the considered value of sales' percentage will be not less than 15%.
- The base amount of the fine may be increased or decreased in order to consider and apply specific aggravating or mitigating circumstances. No single factor can have an impact greater than 15% of the base amount and the cumulative increase/decrease is fixed/capped at 50%.
- Mitigating circumstances now explicitly include the adoption and the enforcement of a specific and adequate compliance program in line with best European and national practices (the ICA however pointed out that the mere existence of a compliance program shall not in itself be considered as a mitigating circumstance, in the absence of proof of a diligent compliance).
- The ICA may increase the base amount of the fine up to 50% in case the company responsible for the infringement has achieved, in the last fiscal year, a particularly high total worldwide turnover compared to the value of sales of the goods or services which are the subject of the violation or should the business belong to a group which has a significant economic dimension.
- The ICA may increase the base amount of the fine considering the profits made by the business responsible for the infringement, in presence of sufficient elements to estimate these profits.