The Cartels and Leniency Review: Italy

Enforcement policies and guidance

i The notion and ban of cartels

The prohibition of cartels is provided by Article 2 of Law No. 287/90, the Italian antitrust law (IAL). This provision, which largely resembles Article 101(1) of the Treaty on the functioning of the European Union (TFEU), 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 of it. The Italian Antitrust Authority (IAA) is the independent agency entrusted with the public enforcement of the cartel prohibition set out in Article 101(1) of the TFEU.

Cartels are not defined but typically include arrangements between competitors clearly aimed at substantially restricting competition, such as by fixing prices, limiting production, sharing markets and customers and bid rigging. Since such arrangements are by their very nature harmful to the proper functioning of competitive markets, they are considered restrictions of competition 'by object', and, therefore, a full analysis of their effects is not required, although – as we will see – the economic and legal context in which they happen remain a central element for their assessment. Cartels are thus punished as per se restrictions.

It is worth noting that the IAA has been a pioneer within the EU in adopting a fairly rigid approach to the assessment of cartel-like behaviour in relation to 'pure' exchanges of sensitive information between competitors, which may be deemed in Italy as per se restrictions, even when they do not concern future prices or volumes, or both. The relevant case law includes two landmark cases dealing with indirect exchanges of information in the insurance business, namely RC Log and IAMA Consulting.2 These cases have been followed by recent IAA precedents,3 amongst which are the Cars financing and Bars for reinforced concrete cases.4 Moreover, the IAA has been in the past years particularly active with regard to anticompetitive behaviour in the context of public tenders for goods or services5 as well as for the award of concession of public services, treating such practices as cartels not only when dealing with clear bid rigging agreements, but also for less obviously illegal behaviour (such as temporary bidding consortia grouping participants that would have each otherwise been capable of participating alone in the tender).6

While there is no general guidance on cartels in the IAA's soft law, in 2014 the IAA adopted guidelines on the method for setting fines in relation to antitrust infringements, which are particularly relevant for cartels. Moreover, in 2018 the IAA adopted compliance programmes guidelines which are to be read in close connection with the leniency programmes (see Section I.ii). Finally, in 2020 the IAA issued a notice providing guidelines on the assessment of cooperation agreements in the context of the covid-19 pandemic, focusing on temporary cooperation agreements aimed at favouring the production and distribution of essential services and goods that may be subject to shortages due to a sudden rise in demand, in particular in the agri-food and health sector. While there is no departure from the general prohibition of cartels, the notice provides some informal guidance on the conditions under which cooperation between competitors can be lawful (and to our knowledge such guidance has been provided in practice).

ii The leniency programme

Under the IAL, the IAA is authorised to set up a national leniency programme in accordance with EU law. On 15 February 2007, the IAA adopted its Leniency Notice.7

According to the Leniency Notice, full immunity from a fine is available to the first cartel participant that spontaneously reports a collusive arrangement, providing the IAA with qualified information or documentary evidence, or both. Subsequent applicants may instead obtain fine reductions, depending on how they 'rank' in their order in approaching the IAA. All parties remain subject – as explained in Section IV – to a qualified cooperation in order to obtain and retain those benefits.

iii The enforcing authorities

The IAA is responsible for the public enforcement of competition law. The IAA is also the only venue for immunity applications.

The TAR (Regional Administrative Tribunal) Lazio in Rome has exclusive jurisdiction over appeals on decisions of the IAA. The applicant lodges its appeal before the TAR Lazio within 60 days of the notification of the challenged decision. Decisions subject to such judicial review include decisions dismissing a complaint and decisions closing the case without the finding of an infringement, for example, by accepting commitments from the investigated parties. By contrast, as a general rule, procedural decisions of the IAA must be challenged as part of the appeal concerning the IAA's final decision.

Judgments of the TAR Lazio may be further appealed before the Italian Supreme Administrative court within 30 days of notification of the judgment or three months from its publication.

Antitrust law can also be enforced before civil courts. The specialised business divisions of the Courts of Milan, Rome and Naples enjoy exclusive jurisdiction in Italy over actions based on antitrust law.

Cooperation with other jurisdictions

i Collaboration within the EU

The European Competition Network (ECN), established by EU Regulation No. 1/2003 in order to ensure a high level of consistency in the enforcement of antitrust law in the EU is the IAA natural forum for coordinating case allocation, exchanging best practices and sharing detailed information concerning enforcement priorities and ongoing cases with the EU Commission and other national competition authorities (NCAs) within the EU. The IAA may also request investigative assistance in the context of the ECN in order to carry out inspections in other Member States.

ii Interplay between proceedings within the EU

Regulation No. 1/2003 provides that national courts and NCAs must avoid adopting decisions that would conflict with a decision contemplated by the EU Commission. Further, as mentioned, within the ECN but also on a bilateral basis the EU Commission regularly liaises with the IAA (and other NCAs) to ensure there is adequate coordination and no overlapping investigations.

With regard to cooperation in the area of leniency applications, the Leniency Programme, consistently with EU Model Leniency Programme on which it is inspired, allows undertakings to file a simplified application with the IAA in case a 'main' leniency application has been or is being submitted before the EU Commission8 for the same infringement. However, it should be noted that if the EU and national applications' scope as per the infringement disclosed do not perfectly coincide, the EU application does not prevent the IAA's intervention at a national level.9

iii Collaboration with NCAs outside the EU

The IAA is one of the founding members of the International Competition Network (ICN), a specialised network of competition agencies that meets on a regular basis and addresses practical competition concerns. The IAA cooperates with NCAs outside the EU mainly in this framework, although bilateral cooperation arrangements are also possible (e.g., in February 2020 the IAA and the Brazilian Competition Authority (CADE) signed a memorandum of understanding).

iv Extradition

As cartels do not generally amount to criminal infringements under Italian law (see Section V.iii), extradition to or from Italy is unlikely to be relevant in practice. It is possible that extradition is granted from Italy if two conditions are met: (1) there must be an extradition treaty with the requesting jurisdictions at stake; and (2) the alleged antitrust breach needs to amount to or be included in a crime also in Italy.

Jurisdictional limitations, affirmative defences and exemptions

i Jurisdictional reach of the IAL

The IAL (as well as EU law, as enforced by the IAA) does not only apply to acts occurring in Italy, but also ones that take place outside the national borders provided that they have as their 'object or effect' the restriction of competition in Italy (i.e., they have an impact on competition in Italy). Conversely, acts taking place in Italy that exclusively concern foreign markets do not fall within the scope of the IAL, possibly save if it could be argued that any good affected by this conduct has a reasonable probability of being reimported into Italy.

Furthermore, for an act to be caught by the IAL, it is not necessary that the undertaking concerned be present in Italy (e.g., via a local subsidiary): the IAA regularly opens proceedings against foreign undertakings and imposes fines against them.

ii Parental liability

The IAA and Italian Courts generally acknowledge the case-law affirmed by the CJEU in Akzo,10 according to which parent companies may be held liable for the conduct of their subsidiaries where the latter do not independently determine their own conduct on the market. When a parent company directly or indirectly holds 100 per cent (or a percentage close to 100 per cent) of the share capital of the subsidiary engaging in a cartel, there is a (theoretically) rebuttable presumption that the parent company actually exercised a decisive influence over its subsidiary, so that the parent company may be found jointly and severally liable for the cartel.

That said, until recently the IAA typically considered parent companies liable only in cases where, in practice, it was able to demonstrate their active involvement or reasonable knowledge of the infringing conduct. An exception to this approach is represented by recent the IAA's decision in Cars Financing,11 where, for the first time, the IAA fined parent companies in the absence of evidence of any involvement in the conduct at stake.12

iii Exemptions and defences

There are no general exemptions for cartels in Italy. Legal defences (e.g., the need to deal with an industry crisis) are not typically admitted in cartel proceedings, even if they are in theory available. This was recently confirmed in the context of the covid-19 pandemic. Defences against the IAA (or plaintiffs in general), therefore, generally focus on the fact that the IAA or the plaintiff has not satisfied the burden of proof for the entire duration of the alleged infringement (or part thereof). Focus is also normally placed on the insufficient or illogical reasoning of the cartel allegation.

Leniency programmes

i Scope of the leniency programme in Italy

The leniency programme was firstly introduced in Italy by Law-decree No. 223/2006, which modified Article 15 of the IAL. The IAA then adopted a Leniency Notice setting out the criteria for obtaining immunity or a fine reduction. The rules established in the Leniency Notice are consistent with those adopted at EU level13 and it is inspired by the ECN Model Leniency Programme.14

The Leniency Notice applies only to cartels, including through hub-and-spoke practices (i.e., a cartel or even a 'pure' information exchange between competitors intermediated by a supplier or a distributor). No immunity for individuals is provided, which is in line with the fact that the cartel prohibition in Italy typically only applies to undertakings. Following the entry into force of the national legislation implementing the Damage Directive,15 a successful immunity applicant is also granted the additional benefit represented by no longer being considered jointly and severally liable for damages with the other co-cartelists.

ii Requisites for immunity

Full immunity is granted to the first undertaking that voluntarily provides the IAA with information or evidence about the existence of a cartel, provided that: (1) such information or evidence is decisive in establishing the infringement, also through a targeted inspection; and (2) the IAA does not already have sufficient information or evidence to prove the existence of that infringement.

A 'marker' may be obtained by means of a reasoned request. The IAA, in such a case, sets a deadline for the submission of evidence. If the deadline is met, the request for leniency is deemed to have been finalised on the date of the marker request.

iii Requisites for fine reduction

Undertakings that do not qualify for full immunity may be eligible for a fine reduction, 'usually not exceeding 50%'. In order to qualify for such benefit, undertakings must disclose facts or evidence which provided added value with respect to the information already in the IAA's possession or enabling the IAA to extend the material scope of the infringement or its duration (i.e., 'partial immunity'). It should be noted that this aspect of the Leniency Notice differs from the EU regulatory framework, which instead provides for three specific levels of reduction of fines. To gauge the reduction, the IAA takes into account (1) the timeliness and extent of the collaboration; and (2) the value of the information or documents provided.

iv Obligations after the leniency application

Following the submission of an application and in order not to lose the benefit of immunity or a reduction of fines, an undertaking must immediately terminate its participation in the cartel. In addition, the undertaking must continue to cooperate fully and diligently for the entire duration of the investigation. Such continued cooperation implies, inter alia, that the relevant undertaking continues to provide the IAA with any information or documents in its possession, that it takes steps to ensure that its employees can be heard at hearings and that it refrains from informing anyone that it has made a leniency application.

In some cases, however, the IAA may require or allow the undertaking not to interrupt its participation in the cartel or not to suspend certain conduct in order to safeguard the successful outcome of the investigation.

v Leniency application and discovery risk

Undertakings may submit corporate statements in writing. It is common practice for undertakings however to provide them orally, in order to address the disclosure risk associated with private damages. Oral proffers could in principle be admitted where 'discovery obligations' obliging the defendant to provide written evidence/documents in its possession are a realistic possibility, either in Italy or abroad. Most recently, Legislative Decree 3/2017 clarified that civil judges may not order the disclosure of statements issued as part of a leniency programme, but this does not apply to the documents filed along with the leniency application.

Penalties

i The IAA's guidelines for setting antitrust fines

Article 15 of the IAL entitles the IAA to adopt cease-and-desist orders and issue administrative fines up to 10 per cent of the yearly turnover of the undertakings concerned.

To increase deterrence and legal certainty, the IAA has adopted Guidelines setting out the methodology that the IAA applies when calculating the fines applicable to antitrust infringements. This is largely in line with the European Commission's Guidelines on the method of setting fines (2006).

The Guidelines prescribe that, in order to determine the base amount, the IAA will apply a percentage, (up to 30 per cent and no less than 15 per cent for serious infringements such as cartels) of the annual sales affected by the infringement, and then multiply this value for the number of years the infringement lasted. This amount may then be increased by 15 to 25 per cent where necessary to ensure deterrence (i.e., 'entry fee'), in particular for infringements with a very short duration. Once the base amount is so determined, it may then be increased or decreased by up to 50 per cent to account for mitigating or aggravating circumstances. Note that the base amount, so adjusted, could then be increased up to 100 per cent to account for recidivism, and decreased by up to 50 per cent where the fined undertaking provides information or evidence decisive for ascertaining a different infringement (i.e., the 'leniency-plus' mechanism). The Guidelines also provide for the possibility to claim inability to pay in order to reduce the level of the fine. Finally, the IAA retains discretion to adjust whatever amount it has reached to reflect special circumstances or the need to adjust it for an effective deterrence.

Setting the base amount on the basis of the relevant sales has proven problematic with respect to single-product undertakings, whereby the relevant sales generally coincide with the undertaking's overall turnover. This results in fines against single-product undertakings to rarely amount to less than the maximum permitted by the law.

ii Compliance programmes and fine reduction

The adoption of an antitrust compliance programme is expressly recognised as an attenuating circumstance for the purposes of fine calculation. To support undertakings in adopting effective compliance programmes, the IAA has published ad hoc Guidelines.

Programmes implemented before the opening of the investigation that have allowed discovery and interruption of the infringement prior to investigation could give rise to a fine reduction up to 15 per cent. Programmes implemented before the opening of the investigation that have not proved effective but are nonetheless not manifestly inadequate could lead to a fine reduction of up to 10 per cent to the extent the fined undertakings supplement the programme pending the investigation. Finally, A fine reduction of up to 5 per cent is available for programmes that are not adequate in origin in the event substantial improvements are implemented pending the investigation.

iii Antitrust and criminal law in Italy

Cartels (and other antitrust infringements) per se do not amount to criminal infringements under Italian law. However, some acts amounting to antitrust infringements may also violate criminal law. The most relevant is bid rigging in the context of public procurement.

To date there has been limited enforcement against criminal violations resulting from these selected anticompetitive acts. In order to also ensure full cooperation on this front with the public prosecutors, in 2018 the IAA signed memorandums of understanding with the Milan and Rome prosecutors' offices to facilitate the exchange of information pertaining to facts that may relevant under both antitrust and criminal law.

'day one' response

i Inspection powers and fines

Article 20 IAL enables the IAA to conduct inspections at the business premises of the companies under investigation (albeit not yet in the private domicile of employees) at any time during an investigation. To do so, the IAA generally avails itself of specialised officers of the tax police.

The IAA's inspections are normally unannounced (dawn raids). During this inspection, it acquires the bulk of the documents and electronic files that will become part of the case file.

The IAA can request to any entities or individuals that have in their possession information or documents relevant for the investigations to provide or display them. Thus, this power is not limited to the investigated parties but may be used in relation to anyone. In the course of inspections, the IAA officials, with the help of the tax police, can also force access to computers, perform keyword searches and collect copies of the responsive documents even in case the parties do not cooperate, but in such events the authorisation of a judge is also required.

The IAA authorises inspections with a formal decision. This is served on the inspected parties together with the decision to open the investigation, which sets out the scope of the same (normally well defined, in terms of products/services concerned and time frame). During the inspection, the IAA cannot require documents outside the scope of the decision to start proceedings. In addition, the IAA cannot require documents covered by legal professional privilege.

Consistently with the global digitalisation, in the past years inspections have mainly, but not exclusively, focused on electronic files, including held on portable devices such as on smartphones.

ii Practical recommendations

IAA officers will often wait until external counsel is present or able to at least provide assistance over the phone if practical within a reasonable time frame. Counsel generally 'shadows' officers to ensure compliance with the limits set out above.

The right not to self-incriminate is respected also with respect to the information the IAA requests during inspections (the IAA is in fact allowed to put questions to the employees concerning the subject matter of the investigation). In the event of genuine, factual uncertainty over certain information, the IAA will allow delay in answering to its questions with answers in subsequent written communication.

Any dispute arising during the inspection (e.g., with regard to the manner in which it is conducted) should be reflected in the inspection minutes.

Private enforcement

i Introduction

Before the implementation of Directive 2014/104/EU (the Damages Directive) with Legislative Decree 19 January 2017, No. 3 (the Decree), lawsuits for the redress of antitrust damage were relatively uncommon in Italy. This was because no plaintiff bar existed as well as due to the relative novelty of these actions, and thus the most aggressive claimants tended to opt for other jurisdictions perceived to be more knowledgeable and plaintiff-friendly. The situation has been changing in the past few years. This is due not only to modifications in the applicable legislation, but also to other factors, including: (1) an increased activism by consumers' associations and industry associations in promoting action for damages; (2) a nascent plaintiff bar offering remuneration schemes based on contingency fees; and (3) an increased activism of third-party funders, including international players now specifically targeting, inter alia, the Italian market.

ii Applicable legislation, limitation periods and competent courts

The current legislative framework applicable to private antitrust enforcement is based on the following key provisions: (1) Article 33(2) of the IAL, under which actions for antitrust damages can be brought before civil courts; (2) the Decree, which confirms that both direct and indirect clients can seek compensation; and (3) general civil law principles concerning tort liability, namely Article 2043 et seq. of the Civil Code.

From a procedural standpoint, the Decree has increased the degree of specialisation in antitrust matters, both for stand-alone and follow-on actions. The commercial divisions of the Courts of Milan, Rome and Naples in fact enjoy exclusive jurisdiction in Italy over actions for antitrust damages.

The Decree also clarified that the five years' limitation period only starts running when: (1) the infringement has ceased; and (2) the claimant is – or, using reasonable care, should be – aware of the behaviour itself, the harm caused to the injured party and the identity of the infringer. This term is in any case suspended, if the IAA opens an investigation, within one year of the closing of the proceedings.

The possibility of using the procedure set out by Article 696 bis of the Civil Procedure Code, which allows the civil judge to order a preventive economic expert witness report, to obtain an accelerated judge-validated ascertaining of the overcharge, is somewhat controversial. This procedure has been considered admissible in by the Naples court but was rejected by the Tribunal of Milan.

iii Standard of proof and quantification of damage

Under Article 7 of the Decree, a final IAA finding of an infringement (i.e., a decision that is no longer subject to appeal in court) must be considered, in civil proceedings, as irrefutable evidence of the nature of the infringement and its actual, personal, temporal and territorial scope.16 This means that there is an absolute presumption that the antitrust misconduct – as described in the decision at stake – occurred.

Moreover, Article 14(2) of the Decree introduces a rebuttable presumption that cartel infringements cause harm. This implies that in follow-on actions concerning cartels, the claimant's burden of proof is essentially limited to quantifying the damages suffered and the causal nexus.

In relation to the quantification of the harm, the Decree confirms the general principle under Italian and EU law that any punitive damages must be excluded from the redress. It also provides the courts with the possibility to be assisted by the IAA.17

Finally, the relevance of any possible passing-on of the relevant overcharge is regulated by Articles 10 to 13 of the Decree. More specifically, Article 12 provides a rebuttable presumption concerning the passing on of the overcharge to indirect purchasers (passing on offence), thereby entitling them to sue for damages their indirect sellers in case such indirect purchasers are able to prove the following: (1) the indirect defendant committed an antitrust infringement; (2) such infringement resulted in an overcharge for the direct purchaser; and (3) the indirect purchaser has purchased the goods or services that were the object of the infringement. On the other hand, the defendant has to prove (without the benefit of any presumption) that the counterparty/plaintiff passed on the whole or part of any possible overcharge resulting from the antitrust infringement (the passing on defence).

iv Access to evidence and protection of confidentiality

Articles 3 to 5 of the Decree contain provisions concerning a strengthened mechanism – the 'exhibition orders' facilitating antitrust plaintiffs when seeking to obtain the disclosure of evidence held by the defendants. In particular, in antitrust cases civil judges can now order the parties (or any third party, including antitrust authorities) to disclose any evidentiary elements in their possession provided that, in doing so, the principles of proportionality and specificity are respected, while preserving the attorney-client privilege.

These powers of disclosure – which go well beyond the powers foreseen by the Italian Code of Civil Procedure for cases not based on antitrust grounds – are balanced by (1) the possibility for the party holding the sought evidentiary elements to be heard on the order of exhibition; (2) the fact that the order must be crafted as precisely and narrowly as possible; and (3) the fact that judges cannot order disclosure of certain key evidence related to leniency (i.e., the application) or settlement programmes (although the latter have not been introduced in Italy as at the time of writing).

Furthermore, if the requested evidence relates to confidential information, judges can adopt certain measures to protect this (e.g., through confidentiality rings, limiting the number of persons authorised to view the evidence or similar mechanisms), which are becoming increasingly common.

Current developments

i Recent enforcement records

To date, in the course of 2020 the IAA initiated four cartel proceedings (as many as those initiated in 2019) while three cartel cases were concluded. This compares to nine cartel decision adopted in 2019.

None of the cartel proceedings initiated in 2020 was the result of a leniency application (as opposed to three in 2019). This detection instrument – which has never been particularly popular in Italy – is in fact less and less used as a direct consequence of the recent increase of follow-on actions for civil damages. On the other hand, public bodies are increasingly aware of the relevance of antitrust laws and increasingly trigger cartel investigations for bid rigging based on 'suspicious' bidding patterns.

Overall, the year 2020 marks one with an unusually low number of completed cartel proceedings, which to some extent can be traced back to the covid-19 pandemic as most of the pending cases that should have concluded this year have been postponed. However, in the second semester, a number of new cases were initiated, confirming the public statements by the IAA that vigorous enforcement of the cartel prohibition remains one if its top priorities.

ii Recent trends and possible developments

A new chairman of the IAA, commercial judge Roberto Rustichelli, was appointed in May 2019. As with any leadership change, and particularly so at the IAA given the key role played by its chair in setting the agencies' enforcement priorities, it is still to be seen whether going after bid rigging in public tenders remain a goal of the IAA.

A legislative change is expected in the short term in the area of cartel enforcement and leniency in relation to the implementation of the ECN+ Directive,18 which must take place before 4 February 2021. This is expected, among other things, to broaden the IAA's investigative powers to include also the possibility of carrying out dawn raids at the private residences of key managers of the undertakings under investigation.

iii Impact of the new class action

A further expansion of private antitrust enforcement is expected to stem from the entry into force of the new class action rules, which will amend the Italian Civil Procedure Code. Class actions – not limited to the antitrust sector – will in fact become accessible also to undertakings (other than consumers). The new rules will apply to conduct occurring after 19 May 2021, and the key change is that claimants will be able to opt in not only after the certification of the class action, but also after the decision on the merits.

In order to further incentivise class actions, the new rules foresee that the representatives of the certified class shall be entitled to an additional compensation (on top to the amount that the defendant must pay to each member of the class) calculated as a percentage of the total due amount; the measure of the percentage is inversely proportional to the number of members of the class (the percentage decreases as the number of members increases). A provision also aimed at providing an incentive to bring class actions is that if the judge appoints a technical expert – as it is often the case in follow-on actions – the general rule is that defendant must advance the relevant expenses.

Footnotes

1 Gian Luca Zampa is a partner and Ermelinda Spinelli and Alessandro Di Giò are counsels at the Italian antitrust competition and trade practice at Freshfields Bruckhaus Deringer.

2 RC Log case (No. I 377), decision No. 8546 of 28 July 2000 and IAMA Consulting case (No. I 575) No. 13622 of 30 September 2004.

3 Cars financing case (No. I 811), decision No. 27497 of 20 December 2018. The decision was annulled by the administrative judges of TAR Lazio (judgment No. 12531 of 24 November 2020, subject to appeal before the Italian Council of State); Bars for reinforced concrete case (No. I 742), decision No. 26686 of 18 July 2017.

4 That said, administrative courts have done some important openings as to the importance of taking into account the actual capability of the exchanged data to affect competition. See for instance TAR Lazio, judgment No. 6523 of 23 May 2018 concerning the Bars for reinforced concrete case.

5 See notably the cases concerning the public tenders run by the State agency for centralised procurement (Consip), e.g., most recently I-808 – Tender Consip FM4 – Facility management, with a decision in April 2019 (later corrected by the same IAA) levying total fines of ca. €194 million.

6 See, e.g., I-740 – Casalmaggiore Municipality – Tender for the award of the natural gas distribution service.

7 Notice on the Non-Imposition and Reduction of Fines under Article 15 IAL (the Leniency Notice). The Leniency Notice was amended several times (the last amendment dates from 2013), mainly to bring it in line with EU law developments.

8 Leniency Notice, paragraphs 16–18.

9 EU Court of Justice (CJEU), C-428-14, DHL Express (Italy) and DHL Global Forwarding (Italy), 10 September 2015.

10 EU Court of Justice, case C-97/08 P - Akzo Nobel and Others v Commission, as of 10 September 2010.

11 See fn. 3 above.

12 This decision has just been quashed in its entirety (see fn. 3 above) but on different grounds not linked to the parent company presumption.

13 Commission Notice on Immunity from fines and reductions of fines in cartel cases, OJ C 298/17.

15 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the Damages Directive), implemented in Italy by means of Legislative Decree 19 January 2017, No. 3 – on both of which see Section VII.

16 This article (and the corresponding provision in the Damages Directive) is modelled on the binding effect of the Commission's decisions on national courts pursuant to Article 16(1) of Regulation (CE) 1/2003.

17 The IAA could deny assistance where it deems it inappropriate in relation to the need to safeguard the effectiveness of the public antitrust enforcement.

18 Directive (EU) 1/2019 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.

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