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.
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Decree Law 223/2006 converted, with modifications, by Law No 248 of 4 August 2006 has introduced a new subsection 2-bis in Section 15 containing the following provision:
“The Authority, in conformity with EU law, will use a general provision of its own to define the cases in which, based on assistance by companies under investigation in ascertaining infringements of competition rules, the fine may …

Leniency

Where a breach of the competition rules is established, the Authority may order the undertakings concerned to remedy the infringement and impose a fine. In cases of repeated non-compliance with the Authority's orders, an undertaking may be ordered to suspend its activities for up to 30 days.

Cease and desist orders

Section 15 of the Competition Act provides that the Authority may impose fines of up to 10% of an undertaking's annual turnover where the latter fails to refrain from an anticompetitive practice after being ordered to do so by the Authority. Alternatively, where a fine has already been imposed, that fine may be doubled, up to a maximum of 10% of the undertaking's annual turnover.

On 22 October 2014, the Competition Authority has released guidelines defining a calculation method for sanctions against violations of laws protecting competition. The document aims at increasing the effectiveness of the Authority's deterrent sanctioning policy while providing greater transparency to its decision-making process, thus facilitating full and effective judicial review. As their EU counterpart, the guidelines apply a two-stage method consisting first in determining a basic amount, then adjusting it with regard to aggravating or mitigating circumstances, within the 10% ceiling. 

The basic amount of the fine consists in a percentage of the value of sales of goods or services of the undertaking in relation with the infringement multiplied by the number of years of its participation in the infringement. The abovementioned percentage may never be higher than 30% and, for serious infringements (price-fixing, market-sharing and output limitation), lesser than 15%. For trade associations, the value of sales is replaced by the value of its collected membership fees. In the case of bid-rigging, the basic amount of the fine will be equivalent to the amount of the adjudication.

The guidelines make it clear that none of the mitigating or aggravating factors may on its own have an impact on the amount of the fine greater than 15% nor their conjunction have an impact greater than 50%, with three exceptions. Firstly, reiteration of a similar infringement sanctioned within the past five years may lead to an increase of up to 100% of the amount of the fine. Secondly, an undertaking may incur an increase of the amount of the fine of up to 50% where it has achieved a particularly high worldwide turnover compared to the total value of its sales in relation to the infringement in the last fiscal year or where it belongs to a powerful group. The fine may also be increased taking account of the profits derived from the infringement, if they can be measured.

Contrary to the EU case-law, the Italian guidelines acknowledge that the adoption and implementation of a compliance program in line with national and EU best practices may constitute a mitigating circumstance. However, the said program must be effective, i.e. provide, inter alia, for a full commitment and participation of the undertaking's management; adequate training; sanctions for the employees who do not comply with the program and monitoring and audit measures. On 25 September 2018, the Competition Authority adopted guidelines on competition compliance programs. The guidelines address the issues of the contents of the program, the conditions for a mitigation of the fine and the interplay between compliance and leniency. A program established before the conduct of a competition investigation may lead to a reduction of the fine of up to 15%, whereas a program set after the initiation of the investigation may only be rewarded with a 5% reduction.

Finally, under Decree-Law No 50/2016 of 18 April 2016, as interpreted by the December 2016 Guidelines of the Italian Anti-Corruption Agency, a decision of the Competition Authority establishing an infringement of competition rules may constitute grounds for exclusion from participation in public procurement procedures.

Fines

Decree Law 223/2006 converted, with modifications, by Law No 248 of 4 August 2006 has introduced a new subsection 2-bis in Section 15 containing the following provision:

“The Authority, in conformity with EU law, will use a general provision of its own to define the cases in which, based on assistance by companies under investigation in ascertaining infringements of competition rules, the fine may either not be levied or may be reduced in cases foreseen by EU law”.

The current Notice on the Non-imposition and Reduction of Fines of the Italian Competition Authority, lastly revised in 2013, applies mainly to secret horizontal agreements but can in exceptional circumstances also cover cartels with vertical elements. The Notice provides in paragraph 2 that the Authority shall not impose the fines provided by section 15(1) of Law No 287/90 for infringements of Section 2 of Law No 287/90 or Article 101 TFEU, to the undertaking who is the first to submit voluntarily to the Authority information or evidence as to the existence of an agreement pursuant to paragraph (1) of this Notice, provided that the following cumulative conditions are met:

a) in the opinion of the Authority, with reference to the nature and the quality of the elements submitted by the applicant, such information or evidence is decisive for the finding of an infringement, possibly through a targeted inspection;

b) the Authority did not already have sufficient information or evidence to prove the alleged infringement;

c) the other conditions attached to leniency pursuant to the Notice are met.

According to Paragraph 4 of the Notice, undertakings which provide the Authority with evidence of a cartel may qualify for a reduction, normally not exceeding 50%, of the fines which would otherwise be imposed under section 15(1) of Law No 287/90 for infringements of Section 2 of Law No 287/90 or Article 101 TFEU. In order to qualify, the submitted evidence must significantly strengthen, by its very nature or its level of detail, the evidence already in the possession of the Authority, thereby appreciably contributing to the Authority's ability to prove the alleged infringement. The other conditions attached to leniency pursuant to the notice must also be met.

Paragraph 5 of the notice sets out the criteria that the Italian Competition Authority will take into account in order to determine the appropriate level of reduction of the fine which are listed as follows:

a) the timeliness of the cooperation provided by the undertaking, in relation both to the stage of the proceedings and the level of cooperation provided by other undertakings;

b) the evidentiary value of the material submitted.

Pursuant to Paragraph 7 of the notice, an applicant for leniency must cumulatively fulfill all the following conditions:

a) the applicant must immediately end its involvement in the alleged cartel following its application. However, the Authority can request or allow the undertaking not to suspend some of its activities in the agreement, whenever this is deemed necessary to preserve the integrity of the Authority's inspections;

b) the undertaking must cooperate fully and on a continuous basis with the Authority throughout the proceedings, and in particular it must:

- promptly provide the Authority with all relevant information and evidence that came into its possession;

- remain at the Authority's disposal to answer promptly to any request that may contribute to the establishment of the relevant facts;

- take any action to ensure that its current employees - and, as far as possible, its former employees - can be summoned and heard by the Authority if necessary;

- refrain from destroying, altering or concealing any relevant information or evidence;

- refrain from disclosing to anyone the fact or the content of a leniency application before the Authority has notified the statement of objections, unless otherwise agreed by the Authority;

c) when contemplating the filing of a leniency application, the undertaking must not inform anyone of such intention, except other competition authorities or an external lawyer.

An Amnesty Plus program was introduced in the Guidelines on fines dated 22 October 2014 whereby a leniency applicant may benefit from a 50% fine reduction for an agreement under investigation where he/she reports the existence of a second cartel that the Competition Authority is unaware of. 

Pursuant to Article 4(5) of Legislative Decree 3/2017, implementing Article 6(6) of Directive 2014/104/EU, a court cannot at any time order a party or a third party to disclose leniency statements. The concept of “leniency statements” is defined in Article 2 of Legislative Decree 3/2017 and covers both successful and unsuccessful leniency applicants. 

For the sake of completeness, it is worth mentionning that Article 15(5) of Law 287/90, introduced by Legislative Decree 185/2021, provides that leniency statements may be submitted in writting or orally, or by other means that can be identified by the ICA in order to ensure that applicants do not acquire possession, custody or control of the statements at issue. 

Global Competition Law

431. Leniency

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Les notions juridiques connexes

431. Leniency

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Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise