Cartels Comparative Guide

Author:Ms Paolisa Nebbia
Profession:Shearman & Sterling LLP

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions apply to cartels in your jurisdiction?

The relevant provisions are Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 2 of Italian Law 287/90. The latter largely reflects the provisions of Article 101(1) TFEU and 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 thereof, including conduct such as price fixing, production limitation, market sharing and discrimination among trading partners. The main difference from the corresponding EU provision is the absence of the requirement for an "effect on trade between Member States" - the jurisdictional standard which defines the boundary between conduct that is subject to EU law and conduct that is governed solely by domestic law.

1.2 Do any special regimes apply to cartels in specific sectors?

Under Article 8(2) of Law 287/1990, national competition provisions do not apply to undertakings entrusted with the operation of services of general economic interest or that operate on the market in a monopoly situation, insofar as this is indispensable to perform the specific tasks assigned to them.

Also, according to Article 20(5-bis) of Law 287/90, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) may, at the request of the Bank of Italy, authorise an agreement in derogation of the prohibition set out in Article 2 in the interests of the efficiency of the payments system, for a limited period and taking due account of the criteria set out in Article 4(1).

Recently adopted legislation on public procurement may affect the possibility for undertakings found liable for bid rigging by the Italian Competition Authority to participate in public procurement procedures. This is by virtue of Article 80(5)(c) of Legislative Decree 50/2016, containing the new Italian Public Procurement Code, and its implementing guidelines. Article 80(5)(c) provides that an economic operator may be excluded if, among other things, the contracting authority can demonstrate by appropriate means that it is guilty of serious professional misconduct which renders its integrity or reliability questionable. Guidelines 6/2017, adopted by the Anti-corruption Authority (Autorità Nazionale Anticorruzione) to clarify the scope of application of Article 80(5)(c), include as an instance of serious professional misconduct (and hence as a potential ground for exclusion) the conclusion of anti-competitive agreements. In addition, in assessing the integrity or reliability of an economic operator, the contracting authority must take into account any infringement decisions of the Italian Competition Authority regarding serious antitrust violations.

However, the case law of the administrative courts has not fully endorsed this interpretation of Article 80(5)(c), so it is difficult to predict whether the commission of an antitrust infringement will exclude an economic operator from public procurement procedures.

1.3 Which authorities are responsible for enforcing the cartel legislation?

The Italian Competition Authority acts as both the investigative and decision-making body in this regard.

1.4 How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?

The Italian Competition Authority is very active, in terms of both the number of cases it opens and its application of sanctions. In 2018 eight proceedings concerning anti-competitive agreements were closed, four with the imposition of sanctions. Of these four cases, two involved cartels: I811 - Finanziamenti auto and I812 - FIGC, regolamentazione dell'attività di direttore sportivo, collaboratore della gestione sportiva, osservatore calcistico e match analyst.

Two other cartel cases were closed with a finding of an infringement at the beginning of 2019: I816 - Gara SO.RE.SA., rifiuti sanitari Regione Campania and I806 - Affidamento gare antincendio boschivo.

The average duration of an antitrust investigation in 2018 was 451 days.

2 Definitions and scope of application

2.1 How is a 'cartel' defined in the cartel legislation?

There is no definition of a 'cartel' under Italian law. The closest to a definition is the wording used in the Italian Competition Authority's Communication on Leniency Programmes 287 of 10 October 1990, which applies to 'horizontal secret agreements'.

2.2 What specific offences are defined in the cartel legislation?

See questions 1.1 and 2.1.

2.3 Is liability under the cartel legislation civil, criminal or both?

Undertakings are subject to administrative penalties under Law 287/90 and possible damages claims (of a tortious nature) under Decree-Law 3/2017, which implemented the EU Damages Directive (2014/104/EC).

As a cartel constitutes an administrative offence, no criminal liability is triggered. However, individuals who are involved in bid rigging in the context of public procurement procedures may also commit a criminal offence (under Articles 353, 353-bis and 354 of the Italian Criminal Code).

The criminal liability of individuals may also be triggered by speculative conduct aimed at limiting the production or increasing the price of raw materials, food products or first-need products (Article 501-bis of the Italian Criminal Code). The sanctions include both fines and imprisonment.

2.4 Can both individuals and companies be prosecuted under the cartel legislation?

No; see question 2.3.

2.5 Can foreign companies be prosecuted under the cartel legislation?

To the extent that anti-competitive conduct taking place outside Italy has effects within the Italian territory or a substantial part thereof, such conduct falls within the scope of Law 287/90, or possibly Article 101 of the Treaty on the Functioning of the European Union if it affects trade between EU member states. As a consequence, such conduct may be investigated and sanctioned by the Italian Competition Authority, irrespective of the nationality of the company.

2.6 Does the cartel legislation have extraterritorial reach?

See question 2.5. However, if companies established in Italy engage in cartel conduct affecting only foreign trade (including where the anti-competitive agreements or practices take place within Italy), this falls outside the scope of Law 287/90.

2.7 What is the statute of limitations to prosecute cartel offences in your jurisdiction?

The Italian Competition Authority cannot impose fines on conduct that ended five years prior to the adoption of the decision. In case of continuous infringement, the limitation period starts to run from the date on which the anti-competitive conduct ceases.

3 Investigations - general

3.1 On what grounds may the enforcement authorities commence an investigation?

According to Article 12 of Law 287/90, after assessing the evidence in its possession and submitted to it by the public authorities or any other interested party (which may or may not qualify formally as a 'complainant'), the Italian Competition Authority can conduct an investigation to ascertain any infringement of the prohibitions set out in Article 2. However, the Italian Competition Authority is under no obligation to start an investigation once it receives a complaint. If it decides not to do so, the Italian Competition Authority will send a letter to the complainant explaining its position.

3.2 What investigatory powers do the enforcement authorities have in conducting their investigation?

The Italian Competition Authority's investigative powers are set out in Article 14(2) of Law 287/90 and Articles 8 to 11 of Decree-Law 217/1998.

The Italian Competition Authority can request in writing from any individual, undertaking or entity any information or documents in its possession that may be relevant to an investigation. Requests for information and the disclosure of documents can also be made orally in the course of hearings or inspections. Oral requests and responses to these requests are recorded in the minutes of the hearing or inspection. Responses provided during the hearing or inspection can be supplemented within the timeframe set out in the minutes. The Italian Competition Authority may also:

hear any other individual, undertaking or person for the purposes of aiding the investigation; and make written records of any information collected. The Italian Competition Authority can also inspect the business premises of any party that may be in possession of documents that are relevant to the investigation. On commencing an inspection, Italian Competition...

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