Enforcement

Complaints procedure for private parties

Is there a procedure whereby private parties can complain to the authority responsible for antitrust enforcement about alleged unlawful vertical restraints?

Private parties may file a complaint to the IAA relating to alleged unlawful vertical restrictions. There are no particular formalities to be followed. The IAA does not have any legal obligation to launch an investigation.

After receiving a complaint, the IAA normally starts a pre-investigation phase, during which it gathers all the data and information necessary for the preliminary assessment of the matter (eg, by hearing the complainant and requesting further information from the complainant itself and to any other entity, such as other competitors, clients, suppliers, or even the undertakings whose conduct is complained of).

The law does not provide for a deadline within which the IAA must open proceedings (or dismiss the complaint).

When the IAA refuses to open an investigation, it issues a reasoned opinion that can be appealed by the complainant before the administrative courts, provided that it proves that the decision jeopardises its interests.

Regulatory enforcement

How frequently is antitrust law applied to vertical restraints by the authority responsible for antitrust enforcement? What are the main enforcement priorities regarding vertical restraints?

Until recently, the IAA concentrated all its efforts on horizontal practices and abuse of dominance cases. The investigations launched in relation to vertical agreements in the past 10 years represent a minimal percentage of the total cases.

The main enforcement priorities regarding vertical restraints in recent years are RPM and online sales.

What are the consequences of an infringement of antitrust law for the validity or enforceability of a contract containing prohibited vertical restraints?

According to article 2(3) of Law No. 287/90, prohibited agreements are null and void and, therefore, unenforceable.

Invalidity may affect the single restrictive clause, or clauses, or may extend to the whole contract. As per article 1419 of the Civil Code, the invalidity of single clauses leads to the nullity of the entire contract if it appears that the parties would not have entered into the contract without that part of its content which is affected by invalidity. Moreover, the nullity of a single clause does not lead to the invalidity of the contract when the law provides for mandatory rules to replace the void clauses.

May the authority responsible for antitrust enforcement directly impose penalties or must it petition another entity? What sanctions and remedies can the authorities impose? What notable sanctions or remedies have been imposed? Can any trends be identified in this regard?

The IAA imposes penalties independently (ie, without gaining prior permission by any other entity).

Pursuant to article 15 of Law No. 287/90, in the event that the IAA, following an investigation, ascertains a violation, it shall set a deadline within which the undertaking (or undertakings) concerned is to remedy the infringement.

Moreover, in the case of serious infringements, the IAA imposes fines of up to 10 per cent of the undertaking’s turnover of the previous financial year (prior to the decision ascertaining the infringement).

In the most recent cases on vertical restraints, the IAA accepted the commitments proposed by the parties and closed the investigations without ascertaining any infringement. This can be viewed as an indication of a lenient attitude by the IAA towards vertical restrictions or, alternatively, as a signal that vertical restraints, which have long been neglected, will no longer be ignored.

Investigative powers of the authority

What investigative powers does the authority responsible for antitrust enforcement have when enforcing the prohibition of vertical restraints?

When starting an investigation, the IAA normally carries out unannounced inspections at a company’s premises, land and vehicles. During the raid, the IAA’s officials, with the assistance of the Tax Police, may review and make copies of any documents relevant to the investigation and may request any manager or employee of the company to give oral information and explanations, which are then recorded in the minutes of the inspection.

In the course of the proceedings, the IAA may send written requests for information to the undertakings under investigation and to any third parties (including companies domiciled outside its jurisdiction).

Requests for information may also be sent by the IAA in the pre-investigation phase, in order to assess whether the case raises possible concerns that are worth investigating. Such requests for information may be sent to the company or companies whose conduct is concerned, as well as to any third parties.

Private enforcement

To what extent is private enforcement possible? Can non-parties to agreements containing vertical restraints obtain declaratory judgments or injunctions and bring damages claims? Can the parties to agreements themselves bring damages claims? What remedies are available? How long should a company expect a private enforcement action to take?

Italian law allows both stand-alone and follow-on private enforcement actions. The civil remedies that are available are essentially actions for the declaration of invalidity of agreements (or single clauses) and damage claims. Parties may also apply for interim relief.

With reference to damage actions, compensation can only cover the actual loss and loss of profit (plus interests), and does not allow for overcompensation.

The court may request the IAA’s assistance in determining the amount of damages. Actions can, in principle, be brought by both non-parties to agreements containing vertical restraints and by the parties to agreements themselves. As per article 140-bis of the Consumer Code (Law No. 206/2005), class actions are also allowed, based on an opt-in model: the action can be brought by consumers individually or through associations to which they grant power or committees in which they participate.

According to article 18 of Legislative Decree No. 3/2017, only the ‘Specialised Chambers in Company Law’ of the civil courts of Milan, Rome and Naples have jurisdiction, on a territorial basis, on antitrust actions.

First-degree proceedings usually last around three years. The unsuccessful party shall be ordered by the court to bear the costs of the proceedings, the amount of which is, however, determined by the court.