On 4 June 2015, the Italian Supreme Court handed down a landmark decision in relation to taking of evidence in stand alone antitrust damages actions (case Comi and others v. Cargest).

The action was brought by a group of fruit, vegetable and fish wholesalers against Cargest, the manager of the Rome wholesale general market. In particular, the plaintiffs claimed that (i) Cargest was the manager of the market centre according to an exclusive agreement entered into with the owner; (ii) Cargest had a dominant position in the market for the management of infrastructures for the wholesale distribution of fruit, vegetable and fish in the city of Rome; (iii) Cargest abused such position imposing discriminatory and harmful terms and conditions to the wholesalers.

The Court of Appeal of Rome as a judge of first instance dismissed the action. It found that the evidence submitted by the claimants were considered insufficient to show the dominant position of Cargest in relation to the dimension of the relevant geographic market limited to the city of Rome. In this respect, the Court of Appeal noted that the claimants were only capable to support such definition with “generic elements”.

The Supreme Court did not agree. First, the Supreme Court remembered that anyone who has suffered harm as a result of an infringement of the EU competition rules is entitled to claim compensation and that under Regulation (EC) No 1/2003 “national courts have an essential part to play” in this respect. The decision continues by saying that the evidential barrier faced by the victims of antitrust infringements in stand alone damages actions is much higher than in follow-on actions, where the claimants can benefit from the wide investigative powers of the antitrust authorities.

According to the Supreme Court, “in this scenario the judge shall render effective the protection of the rights of the victims of antitrust infringements, taking into account the asymmetry among the parties in their access to evidence, also by means of a purpose-oriented interpretation of the rules of civil procedure, aimed at a correct enforcement of competition rules. This goal may be achieved by valorising the investigative tools that the rules already provide to Judges, through an extensive interpretation of the rules regarding the disclosure of documents, requests for information to Public Administrations and, most importantly the role of the Court-appointed expert, that is to be granted wider powers to acquire and assess useful data and information to establish the alleged antitrust infringements…”.

In conclusion, the court of first instance erred because it applied “mechanically the principle of burden of proof without evaluating the opportunity to use also ex officio their investigative powers, as the specific nature of the dispute would have required”. The first instance decision was then reversed and remanded.

Interestingly, the Supreme Court’s decision contains several references to the provisions contained in the Directive 2014/104/UE (the so called “Directive on Antitrust Damages Actions”) that make it easier for victims to get access to evidence.

With this decision the Supreme Court sent a strong message to the lower Courts: do not hesitate to use all tools at your disposal stretching as far as possible their scope of application to protect the rights of the victims of antitrust infringements. The consequence of this approach, combined with an improved class action model currently in the process of being approved by the Italian Parliament, could lead to a “independent” private antitrust enforcement, not limited only to follow on actions.