Legislative Decree no. 3/2017 (“Decree”) enters into force today, implementing in Italy Directive no. 2014/104 / EU of the European Parliament and of the Council of 26 November 2014, which sets the rules governing actions for damages caused by infringements of EU and national competition law.Please find below some highlights on the most significant changes introduced by the Decree on antitrust damages actions:
- The introduction of a presumption of the existence of damages, in case of any infringement which constitutes a cartel;
- The binding nature of final (and not further appealable) decisions of the Italian Antitrust Authority ("IAA") vis-à-vis national judges, with regard to the existence of the infringement and the identification of the undertaking(s) liable therefor;
- The suspension of the limitation period (5 years) during the relevant antitrust administrative proceedings, and up to one year after the decision of the IAA has become final;
- The attribution of specific powers to national judges to order the disclosure of documents (including those contained within the case file of the proceedings by the Antitrust Authority), in favour of both the claimants and the plaintiffs also in order to identify the existence of the possible passing-on defence;
- The introduction of exceptions to the general principle of co-cartelists’ joint and several liability (in particular, in favour of the immunity applicant as well as to small and medium-sized enterprises, provided further requirements are met);
- The competence attributed only to the specialized chambers of the Tribunals of Rome, Milan and Naples.
Certain procedural rules shall also apply to actions filed in late December 2014 (in particular, those relating to discovery judicial orders to the parties). More generally, the Decree also applies to proceedings and decisions by the Commission and the National Antitrust Authorities of other Member States.
For completeness, it is noted that the Decree does not affect in any way the possibility for parties to pre-emptively bring a legal action in Italy seeking a negative declaratory judgment as per the absence of any antitrust damage. This has been typically used to establish and “lock-in” the jurisdiction before Italian judges v. that of courts of other countries deemed less favourable to the defence side (so-called “Torpedo” actions).