Italy Implements EU Directive On Private Antitrust Damages

Author:Mr Giuseppe Mezzapesa, Mario Todino and Lamberto Schiona
Profession:Jones Day

On January 19, 2017, the Italian legislature passed Legislative Decree No. 3/2017 (the "Decree") to address private damage actions arising from competition law violations. This law, effective as of February 3, 2017, implements the EU Directive 2014/104/EU (the "Directive") to establish standard procedures and remove practical obstacles for compensating victims of antitrust violations. The Directive applies to both individual and collective damages actions throughout the EU. Moreover, the Directive fine-tunes the interplay between private damages actions and enforcement of antitrust rules by the Commission and domestic competition authorities.

The Decree encompasses the following key principles:

Burden of proof. Claimant's burden of proof for antitrust damage claims is reduced (Directive, Art. 9; Decree, Art. 7). Indeed, final decisions rendered by the Italian Competition Authority (the "Authority") or by national courts reviewing such decisions are deemed irrefutable evidence of the antitrust infringement found therein. In other words, there is an absolute presumption that antitrust misconduct occurred. This means that claimants would only have to prove to a civil court the nexus between the infringement and the alleged damages suffered, but not the nature of the infringement. Conversely, final judgments on competition law violations issued by a non-Italian authority or by any Member State's national courts amount to prima facie evidence of infringement only (Decree, Art. 7). Moreover, the Decree introduces a rebuttable presumption about the existence of damages when the wrongdoing involves a hard-core antitrust violation such as a cartel (Decree, Art. 14). This implies that in follow-on actions concerning cartels, the claimant's burden of proof would be further eased and essentially limited to quantifying the damages suffered.

Evidence of wrongdoing. The evidence disclosure mechanism in damage claims following the finding of antitrust infringement is strengthened. Judges are now vested with the power to order the defendant or any third party, including the Authority, to disclose relevant evidence in their control - pursuant to the principles of proportionality, specificity and coherence (without prejudice to the attorney-client privilege) upon either the relevant party's motivated request or where it otherwise would be unable to retrieve such evidence. However, in order to create checks and balances against broader powers of discovery, European...

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