Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Section 12 of the Act confers on the Authority the right to initiate investigations in certain defined circumstances. According to its provisions, the Authority may receive complaints from public authorities or other interested parties, including consumer organizations. Furthermore, the Authority may instigate general investigations on its own initiative or at the request of the Minister for Trade …

Complaints and investigations

Section 12 of the Act confers on the Authority the right to initiate investigations in certain defined circumstances. According to its provisions, the Authority may receive complaints from public authorities or other interested parties, including consumer organizations. Furthermore, the Authority may instigate general investigations on its own initiative or at the request of the Minister for Trade and Industry or the Minister of State Shareholdings in certain areas of business where it appears competition is being impeded. Upon receipt of a complaint, the Authority shall analyze the information in its possession and conduct an investigation to ascertain whether there has been anticompetitive conduct pursuant to Sections 2 and 3 of the Act.

Section 14(2) of the Competition Act provides that the Authority may ask undertakings and individuals to supply any information in their possession and disclose any relevant documents. Where it deems necessary, the Authority may carry out on-site inspections of an undertaking's books and records and make copies of company documents. The Authority may seek the assistance of the Guardia di Finanza (Customs and Excise Police) or any other Government agency during the course of its inspection. It also has the right to consult experts on any matter of relevance to the investigation. The rules of procedure in relation to competition law investigations are set out in Presidential Decree No 217 of 30 April 1998.

The 2021 Annual Law for Competition (Law No 118 of 5 August 2022) strengthens the ICA's investigative powers. The ICA may now require undertakings to provide information or documents at any time if it intends to investigate a potential abuse, anticompetitive agreement or a merger. The law also introduces the possibility for undertakings involved in proceedings, which potentially may be subject to fines, to apply for a new settlement procedure with the ICA.

In the event of an alleged breach of Sections 2 or 3, the Authority must notify the undertakings concerned that an investigation is being opened. Parties under investigation are entitled to make representations and to see any documents relating to the investigation that are not confidential. They are sent a Statement of Objections at least 30 days before the end of the investigation in which the alleged infringements are presented. Parties may make submissions during the course of the investigation, and at the conclusion of the investigation they are summoned to the final hearing before the Authority.

By Decree Law 223/2006, the Italian Competition Authority was empowered to accept commitments offered by the undertakings (Section 14 ter of the Competition Act). The Italian Competition Authority has issued a Note regarding procedures for applying the new Section 14 ter of the Competition Act available on its website. In practice, the procedure mainly applies in cases of abuse of dominance, not to cartels.

Contrary to EU law, the Italian competition rules do not contain provisions relating to settlement agreements between undertakings and the competition authority.

Proceedings before the Authority

Decree Law 223/2006 converted, with modifications, by Law No 48 of 4 August 2006 introduced into the Competition Act a new Section 14 bis on interim measures providing that:

“In urgent cases where there is a risk of serious, irreparable damage to competition, the Authority may, where a cursory examination reveals the existence of a contravention, decide ex officio that interim measures must be adopted.”

A notice regarding the implementation of the new Section 14 bis is available on the website of the Italian Competition Authority.

Interim relief

In addition to the Competition Authority, the Italian national courts also have a role in the enforcement of competition law. Annulment proceedings, claims for damages and petitions for emergency measures relating to infringements of the provisions of Titles I to IV may be filed before courts specialized in commercial matters, as established by Decree-Law No 1/2012 of 24 January 2012.

Decree-Law No 3/2017 of 29 January 2017 implemented EU Directive 2014/104 on damages actions in national law. Contrary to other Member States, the entry into force of the new rules is not set at 27 December 2016, as imposed by the directive, but at 3 February 2017. To foster the exercise of damages actions, the new rules provide for extended access to evidence. This includes evidence contained in the Competition Authority's file but only after proceedings are closed and disclosure may not concern leniency applications, settlement agreements and privileged communications. The Authority may fine anyone who refuses or fails to provide the information or disclose the documents requested without justification, of an amount not exceeding EUR 25,000 which may be increased to EUR 50,000 for providing inaccurate information or documents, in addition to any other penalties provided by current legislation. For the purpose of the damages action, an infringement to competition rules ascertained by a final decision of the Competition Authority constitutes indisputable proof of a breach. The decision of the competition authority of another Member State constitutes an element of proof which must be corroborated by other elements. The statute of limitations is set at five years, running from the day the breach has ceased or the day where the claimant was aware or could reasonably be aware that the conduct at issue constituted a breach of competition law, that this breach caused damage and discovered the identity of the infringing party. The statute of limitations may be interrupted by an investigation initiated by the Competition Authority. The Decree-Law also provides that the effects of joint and several liability, in the case of multiple offenders, set by the Civil Code may be limited under certain conditions for SMEs and leniency recipients. The passing on defense may be invoked by the defendant but on the condition that she/he establishes that the overcharge has effectively been passed on. However, under certain conditions, indirect purchasers benefit from a rebuttable presumption that the direct purchaser passed on the overcharge. Harm resulting from a competition infringement is also presumed, but the claimant still has to prove the extend of such harm. In this respect, the court may seek assistance from the Competition Authority. Finally, the Decree-Law especially entrusts the business courts of Milan, Rome and Naples with damages actions.

In addition, class actions, which were previously reserved for consumer law infringements, will be made available to victims of anticompetitive practices under Law No 31/2019 of 12 April 2019, which will enter into force in November 2020. The new provisions are included in Sections 840-bis et seq. of the Code of Civil Procedure. Actions will be filed before the section of the court having territorial jurisdiction specialized in business litigation (Tribunale delle Imprese). The application will be published on the Minister of Justice's website. The Court will have 30 days to rule on admissibility and new claimants are entitled to join the action up to 60 days after that ruling. Should the judge rule favorably on the merits, the ruling must specify the amount of the award to which each member of the class is entitled. Up to 150 days after that ruling, new claimants may opt-in.

Global Competition Law

425. Complaints and investigations

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

425. Complaints and investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise