The Private Competition Enforcement Review: Italy

Overview of recent private antitrust litigation activity

In parallel with other EU Member States, the Italian private antitrust enforcement system has been reshaped by the transposition of Directive 2014/104/EU (the Damages Directive), which was implemented by Legislative Decree No. 3/2017 (the Legislative Decree).2 With this development, the national legislator stresses the distinction between private antitrust disputes and ordinary civil litigation, aiming to recognise the peculiarities that characterise the private antitrust enforcement landscape.

The entry into force of the Legislative Decree has already had a significant impact on private antitrust litigation in Italy, stimulating both the initiation of many damages actions3 and a modernisation of the entire relevant legislation (for instance, the reform of the Class Action Law4 and the recent enforcement of the Annual Competition Law).5

In general, private antitrust enforcement in Italy is mostly carried out through follow-on actions based on decisions of antitrust authorities or review courts.

This trend has been verified during the past three years. In fact, several follow-on actions relating to the European Trucks case of 20166 have been brought – and are still pending – before the Chamber Specialised in Business Matters of the Courts of Milan, Rome and Naples, with the first judgments on the merits being given in 2021.7

General introduction to the legislative framework for private antitrust enforcement

The Damages Directive was implemented in Italy by the Legislative Decree, which provided the Italian legal order with a structured legislative framework in terms of private antitrust enforcement.

Consistently with the Damages Directive, the Legislative Decree states that any victim of an antitrust violation has the right to bring private antitrust actions before the competent Italian civil courts seeking compensation, declarations of nullity, restitution or injunctive relief. As stated in Recital 5 of the Damages Directive, 'actions for damages are only one element of an effective system of private enforcement of infringements of competition law'.

Article 18 of the Legislative Decree establishes that disputes concerning competition law fall under the jurisdiction of only three Chambers Specialised in Business Matters (located in Milan, Rome and Naples). This concentration of jurisdiction has allowed the development of specialised judges, who are necessary for antitrust litigation (due to its peculiarities).

Specific attention needs to be paid to the issue of the limitation period for bringing antitrust actions for compensation for damage (actions that, in the Italian legal system, are identified as tort actions).

Generally, the limitation period for tort claims is five years, and Article 8 of the Legislative Decree provides the same term for bringing a claim for antitrust damages. The limitation period is suspended if the Italian Competition Authority (AGCM) opens an investigation or proceeding into the same infringement of competition law as the action for damages. The suspension is extended for up to one year from the final AGCM decision on the antitrust infringement. However, Article 8 of the Legislative Decree specifies that, for the limitation period to start running, the competition law infringement must be ceased and the plaintiff should have knowledge (or can reasonably be expected to have knowledge) of: (1) the conduct, and that the conduct constitutes a competition law infringement; (2) the fact that the infringement of competition law caused damage; and (3) the identity of the infringer. Considering that, according to the Italian legislator, the rules on the statute of limitation have a substantive nature, this new regime cannot be applied retroactively to events that occurred before the entry into force of the Legislative Decree (i.e., before 3 February 2017).8

In addition, the specific degree of diligence required of the interested injured party for being considered as having knowledge or expected to have knowledge of the aforementioned features of the antitrust offence must be assessed by the judge on a case-by-case basis. This can become crucial in all antitrust proceedings in which the injured party is not a consumer but a professional. In this respect, some case law has established that, where the injured party is not a consumer, the dies a quo for the running of the limitation period must be considered as that of the opening of the investigation by the competent antitrust authority. This is because, while the consumer 'remains exposed to [the agreements restricting competition] in an unaware manner, until through its investigations and/or suitable advertising of press and media he is made aware of that',9 the same cannot be said for professionals who operate in the same market as the alleged infringers and make full use of their bargaining power, and who are required by law to behave diligently and to be aware of the dynamics of the market in which they operate, as well as of those of adjacent markets.10 However, according to some recent judgments (which are sub judice on appeal at the Court of Cassation), the dies a quo starts with the antitrust authority's final decision (for consumers as well as professionals).11

Extraterritoriality

There are no specific provisions at Italian level on jurisdiction over private claims for compensation following infringements of competition law. Thus, the jurisdiction of Italian courts on private antitrust claims is determined in accordance with the Recast Brussels Regulation.12

Article 4 of the Recast Brussels Regulation provides for the general rule according to which a defendant that is domiciled in an EU Member State should be brought before the courts of that Member State. However, Articles 7(2) and 8(1) of the Recast Brussels Regulation establish, respectively, two exceptions to this general rule that need to be taken into consideration: pursuant to Article 7, '[a] person domiciled in a Member State may be sued in another Member State . . . (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur', while Article 8(1) states:

[a] person domiciled in a Member State may also be sued: where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Therefore, although the general rule under the Regulation is that defendants should be brought before the courts of the state where they are domiciled, in the above-mentioned circumstances a proceeding might be rightfully brought before an Italian court even when the defendant is domiciled outside Italy.

Standing

Article 1 of the Legislative Decree provides that any natural or legal person that has suffered loss or damage as a result of a violation of the competition law can bring a claim for damages, and is entitled to full compensation covering the actual loss, the loss of profit and interest. Article 10 of the Legislative Decree also clarifies that both direct and indirect purchasers of an infringer may bring a claim for antitrust damages. Therefore, the ability of indirect purchasers to bring a claim is no longer in dispute.

The process of discovery

According to the ordinary procedural provisions governing civil actions, there are limited possibilities to ask for disclosure of information and documentation from the other parties to the proceeding. Pursuant to Article 210 of the Italian Code of Civil Procedure (ICCP), the party applying for disclosure needs to show that the documentation is crucial for the deciding of the case, and that the claimant does not possess any alternative evidence.

However, the EU Damages Directive and the Legislative Decree have introduced a significant change regarding the order of disclosure of evidence, introducing, under Articles 3, 4 and 5 of the Legislative Decree, less strict conditions to obtain the disclosure of evidence in private antitrust enforcement actions. Under this new regime, the party can ask both the other 'parties' and 'third parties' (as well as the indirect purchasers),13 to disclose specific items of evidence or relevant categories of evidence. In terms of requests for categories of evidence, the category should be identified by the judge by reference to 'common features . . . such as the nature . . . [and] the time during which they were drawn up',14 as specified by Article 3(2) of the Legislative Decree and Recital 16 of the Damages Directive.

The broad right to the disclosure of evidence, recognised by the legislator to rebalance the potential information asymmetry, must always be 'proportioned' with the plausibility of the request and, thus, must take into account: (1) the availability of evidence; (2) the scope and costs; and (3) the confidentiality of the information. It is precisely on this latter point that the legislator further clarifies in Article 3(4) the order of exhibition: a series of appropriate measures that must be adopted by the judge to ensure the confidentiality of documents filed in the court by the parties, including the obligation of protecting secrets, the obscuration of parts of documents and the condition of holding hearings behind closed doors.

The emerging case law considers the balancing of the proper conduct of lawsuits with the companies' interest of keeping their trade secrets as such with particular attention. In many cases, the courts have shown a significant inclination for granting protection of confidentiality of information contained in the documentation requested for the purposes of the court technical expert (CTE) (an independent expert appointed by the judge to assist him or her in answering specific questions on technical issues), recognising that, although in antitrust proceedings special provisions are aimed at strengthening the injured party's right of action and to evidence, at both a supranational level and domestically, this need does not have to cause the parties in the proceedings greater risks of damage than those deriving from defeat in the dispute.

Use of experts

According to Article 61 et seq. of the ICCP, the judge may appoint a CTE. In turn, the parties may appoint their own technical experts who cooperate with the CTE throughout in relation to their technical advice and findings. As the Court of Cassation has recognised, expert testimony helps judges reach a better understanding of the facts and allegations argued by the parties.15 Expert witnesses, as noted by the Court of Cassation, can be a useful tool to prove certain facts that require technical competence.16

In Italian private antitrust enforcement, the pivotal role of CTEs in the effective protection of victims' rights to compensation was well known long before the implementation of the Damages Directive. Indeed, with the Cargest ruling, the Supreme Court repeated how:

the judge shall render effective protection of the victims of antitrust infringements . . . by valorising the investigative tools that the rules provide to judges . . . most importantly the role of the Court-appointed expert is to be granted with wider powers to acquire and assess useful data and information in order to establish the alleged antitrust infringement.17

The complex factual and economic analysis necessary to quantify damages (indirect damages from overcharges, in particular), define the affected markets or confirm the possible antitrust infringement require deep economic expertise. This has been frequently acknowledged by Italian judges. For instance, following the Trucks case of 2016, several proceedings were brought before Italian courts by trucks purchasers seeking compensation for the alleged damage. On top of their complex factual background and specific preliminary pleas (e.g., the effectiveness of the European Commission's settlement decisions in civil lawsuits), these cases pose significant difficulties for domestic courts, particularly in relation to the calculation of the alleged damages, which convinced the Italian courts to order the inclusion of a CTE in most of the follow-on cases.

It is worth noting that court-appointed experts might also gather factual elements for evaluation that lie outside the parties' allegations to quantify antitrust damages.18 However, as recognised by jurisprudence of the Supreme Court, in Italy the findings of court-appointed experts are not considered to be evidence in strict technical terms. As such, their findings cannot discharge the parties' burden of proof.19

Class actions

Class actions are relatively recent in Italy, only being introduced in 2009 (with effect from 1 January 2010) in the Italian Consumer Code of 2005.20 With Law No. 31/2019 of 12 April 2019 (which entered into force on 18 May 2021), the legislator has organically reformed the entire discipline on class action and collective injunctive action contained in the Consumer Code, introducing new Title VIII bis (Articles 840 bis to 840 sexies decies), entitled 'Of collective proceedings', within Book VI of the ICCP.

With the entry into force of the Legislative Decree, the legislator not only provided a framework for a well-founded system for private enforcement, but also sought to provide the necessary tools for consumers or small businesses harmed by an antitrust offence to seek compensation for the suffered damage. Therefore, Article 1 expressly recognises the possibility to bring class actions in the context of antitrust damages actions.

Despite this attempt, the 'Italian' class action has not been widely used due to the strict eligibility requirements that nevertheless characterised it. It was only on 18 February 2013 that the Court of Naples upheld the first Italian class action, brought by a group of tourists who claimed damages for ruined holidays against a tour operator;21 on 25 August 2017, the Court of Appeal of Milan ruled that the railway company Trenord should pay €100 to each consumer who joined the class action filed on 3 March 2014.22

With reference to antitrust matters, the first attempt to file a class action was brought before the Court of Genoa in November 2011 and later dismissed.23 Another relevant class action was brought by the consumer association AltroConsumo against captive banks after an AGCM decision that ascertained the existence of a cartel between the main automotive groups operating in the Italian market and their respective financial companies.24

Data suggests that a very limited number of class action lawsuits have been brought before Italian courts to date. However, this may change in the future because of the 'new' class action introduced by the above-mentioned legislative reform.

Among the innovative elements that characterise this new class action is the broad scope of its application, not only by consumers but also by undertakings (therefore, the new class action is located within the ICCP and no longer in the Consumer Code).25 This action can be activated by anyone who complains about the infringement of 'individual and homogeneous rights' and can only be brought before one of the Chambers Specialised in Business Matters.26 Therefore, the legitimatio ad processum is reserved to individuals or undertakings that have suffered harm from a conduct carried out by other undertakings or even by entities managing public services or public utilities 'in the performance of their respective activities'. The action can be filed both directly, by individuals or undertakings, or indirectly, through a consumer organisation.

From a procedural point of view, the reform aims to provide a quick resolution of disputes by requiring the adoption of a summary proceeding referred to in Article 702 bis et seq. of the ICCP. Whereas the previous procedural provision comprised a two-phase structure, the current structure is composed of three phases: at the first hearing, the court assesses the admissibility of the class action;27 during the second phase the court will decide, with motivated order, on the merits (i.e., establish whether the defendant has inferred individual and homogeneous rights); in the conclusive phase, the court will award the sums. An element of peculiarity exists in the possibility for class participants to join the proceeding and be subject to the effects deriving from the final decision (opt-in) after both Phases I and II. This last provision is in line with the previous consumeristic class action and unlike US class actions. With the opt-in model, in Italy, affected consumers or users may join the class action simply by filing a written declaration, and by means of certified mail, email or fax, in addition to providing evidence that supports their claim. This does not require the assistance of a lawyer. Another way in which Italian class actions differ greatly from US class actions is that judges in Italy cannot award punitive damages.

As far as competition law is concerned, it should be noted that the new class action appears to give greater effectiveness to the private antitrust enforcement framework by virtue of the deterrent function of this procedural tool. Moreover, on 4 December 2020, the EU published the Representative Actions Directive28 as part of the 'New Deal for Consumers' legislation introduced by the European Commission in April 2018 to further legal protection of consumer rights. Member States have two years to implement the Directive and a further six months to apply its provisions. It will be interesting to analyse the effects of the recent reform and the future transposition of the Directive on Italian private antitrust class actions.

Calculating damages

Under Article 14(1) of the Legislative Decree, antitrust damages shall be calculated following general civil law rules, in particular pursuant to Articles 1223, 1226 and 1227 of the Italian Civil Code.

Punitive damages or other forms of overcompensation are not available. Indeed, despite the fact that, in 2017, the Supreme Court (in joint session) ruled that 'the legal concept of punitive damages is not essentially incompatible with the Italian legal system',29 Italian courts currently award compensatory damages limited to the plaintiff's actual loss, loss of profit and interest from the date the infringement occurred.

Article 14(2) of the Legislative Decree provides for a rebuttable presumption on the existence of the damage in the case of cartels, aiming to lighten the burden of proof posed on the damaged party. Although the existence of the damage can be presumed, its quantification will have to be determined. However, if the quantification turns out to be 'objectively impossible', courts can award damages on an equitable basis (in compliance with Article 1226 of the ICCP).

Even if the assessment on an equitable basis should be a 'last resort' solution, sometimes courts do so merely because the complexity of the economic assessments for estimating antitrust damages discourages courts from a precise quantification.30

Moreover, under Article 14(3) of the Legislative Decree, the judge can ask the competent authority to provide assistance on the guidelines concerning the quantification of damages, where the authority itself deems its intervention appropriate. This provision provides for a crossroad for cooperation between public and private enforcement and establishes an innovative alternative to requesting the help of a CTE.

Ultimately, pursuant to the general rules set out in the ICCP, proceedings costs (costs, duties, fees and VAT) fall on the losing party.

Pass-on defences

Chapter IV (Articles 10 to 13) of the Legislative Decree regulates the 'transfer of the overcharge'. Article 10 clearly states that anyone damaged by an antitrust violation is entitled to bring an action for damages, irrespective of whether they are a direct or indirect purchaser of the infringer. Conforming to the general principle by which those who act to obtain compensation for damage must prove its existence, Article 12(1) requires the plaintiff to prove, by also requiring the disclosure of documents, the existence and the scope of the transfer of the overcharge.

However, pursuant to Article 12(2), the legislator, by recognising the particular information asymmetry that characterises the relation between an indirect purchaser and a manufacturer, provides for a legal rebuttable presumption in favour of the indirect purchaser regarding the ascertainment of the transfer of the overcharge. The defendant, by invoking the passing-on defence provided at Article 12(3) (as well as at Article 11) can rebut this presumption by proving that the claimant passed on all or part of the overcharge; thus, that the claimants suffered limited harm or did not suffer any harm at all from the conduct.

Article 14(2), on the calculation of the damages, provides for another rebuttable presumption in the case of a cartel. In addition, Article 13 of the Legislative Decree states that in determining whether the burden of proof required under Articles 11 and 12 of the Decree has been satisfied, Italian courts can consider actions for antitrust damages related to the same antitrust violation both in Italy and in other Member States; in other words, an Italian judge, in assessing whether the burden of proof related to the passing-on defence is satisfied, can consider antitrust cases filed both in Italy and other Member States by claimants from other levels of the supply chain.

As discussed in Section VI, defendants and judges frequently appoint their own expert witnesses to cooperate with CTEs throughout cases, in terms of their technical advice and findings.

Follow-on litigation

Private antitrust enforcement in Italy is usually carried out with follow-on actions relying on the decision of an antitrust authority or review court (which, under Article 7 of the Legislative Decree, 'definitively' establish the ascertained infringement of competition law). However, the binding effect concerns only the nature and material, personal, temporal and territorial scope of the infringement without proving the existence of the casual link and the occurrence of the damage. As discussed in Sections VIII and IX, the legislator, by providing for different rebuttable presumptions, limits the scope of the burden of proof in the case of ascertained cartels to the damage or otherwise to contrary proof.

This has been acknowledged by Italian courts even before the entry into force of the Legislative Decree, in judgments in which the findings of the AGCM represented 'privileged evidence' of anticompetitive behaviour, creating a rebuttable presumption.31 However, in several antitrust lawsuits, the Supreme Court created a presumption according to which antitrust damages existed in follow-on actions based on AGCM decisions.32

This dichotomy in the approach of the judges to the binding effect of the decisions of antitrust authorities over the courts asked to rule over follow-on actions for damages has in no way been made clearer by the enforcement of the Legislative Decree, and is emblematically represented in the follow-on actions relating to the European Commission's Trucks decision. Indeed, while there have been cases in which the binding effect of decisions has been limited as excluding the effects of the anticompetitive behaviour enshrined in it and, all the more so, the damages that have been possibly suffered by the plaintiffs, in other cases the courts have considered a settlement decision, lacking a full investigation, as a demonstration of the existence of the damage claimed by the plaintiffs. However, none of these judgments are yet final; thus, there is still margin for the crystallisation of one of these two approaches.

Privileges

Generally, Italian law protects the confidentiality of information exchanged between a lawyer and his or her clients. However, as pointed out above, the confidentiality of information does not cover communications exchanged between a party and in-house lawyers.33 In the context of antitrust law, Article 3(6) of the Legislative Decree has confirmed the confidentiality of communications between lawyers (who are members of the Bar) and their clients. As observed above, Article 3(4) of the Legislative Decree has stated that the court, in ordering the disclosure of documents, may grant specific measures to protect confidential information.

Apart from final trial hearings, all other hearings are private, and only the parties can access case files. Parties have full access to all the documents produced before the court even if these documents include confidential information, while third parties do not have any right to access this documentation. Judgments are public but case details remain confidential.

Settlement procedures

Conforming to the European provisions, Chapter VI of the Legislative Decree (entitled 'Effects of consensual dispute resolution') adheres to the three measures proposed at EU level to incentivise the use of alternative mechanisms. Pursuant to Article 15(2), the judge may, upon the request of the parties, suspend the proceeding for up to two years when they are involved in consensual dispute resolution with respect to the claim covered by the same action for damages. If the conciliation does not succeed, the parties must resume the judicial action within 30 days if they are willing to continue the trial. In addition, Article 16 states that in calculating damages, courts need to consider those awarded through a prior consensual settlement. Furthermore, any remaining claim of the settling injured party may be exerted merely against non-settling co-infringers. By doing so, the new regulation encourages settlement solutions between the plaintiff and the defendant in an antitrust proceeding.

Finally, it should be noted that, on 4 November 2021, the Italian Council of Ministers, approved the Draft of the Annual Competition Law,34 which, among other things, introduces the possibility of settlements in proceedings before the AGCM;35 an accomplishment that represents a step towards complete harmonisation of the Italian competition law framework with that of the EU.

Arbitration

Article 15 of the Legislative Decree specifies that at the request of the parties, the judge may suspend the proceedings for up to two years if the parties seek recourse under an alternative dispute resolution (ADR) procedure. Moreover, the limitation period to bring an antitrust claim for damages is suspended for the duration of the ADR procedure. Furthermore, with respect to the quantification of damages, Article 16 states that courts shall consider any damages awarded following a prior ADR procedure, including arbitration.

Indemnification and contribution

Article 2055 of the Italian Civil Code states that tortfeasors are jointly and severally liable for the damages, and that tortfeasors (or defendants) that have paid out the award have the right to seek recovery from the other tortfeasors (or defendants) in proportion to the tortfeasor's degree of fault. Article 2055 also states that, in the case of doubt of the degree of a defendant's or tortfeasor's fault, this is presumed to be equal.36

To balance this rule with the general principle of procedural economy, the Italian legislator has foreseen the possibility, for either the parties or the court itself, to achieve the joinder of the parties directly in the same proceedings, through the 'third-party call'. This institution, which is a general rule of procedural law, seems to be particularly useful in follow-on actions, where antitrust infringements are often perpetrated by more than one infringer. Despite this, as clearly seen in the follow-on actions based on the Trucks decision of the European Commission, the Chambers Specialised in Business Matters have different views on authorising third-party calls, with the Court of Milan frequently ordering joinder with the other companies participating in the same antitrust infringement,37 and the Court of Naples refusing to authorise it, 'in order not to prejudice the higher canon of Article 111 of the Italian Constitution and to avoid an excessive burdening of the proceedings'.38

Future developments and outlook

It is clear that Italy has fully understood the importance of ensuring judicial protection for private individuals seeking compensation for damage resulting from antitrust infringements, and both the lawmakers and the courts are working together to accomplish this goal.

The significant progress that has been made in the field of private antitrust enforcement following the entry into force of the Legislative Decree will be strengthened by the ongoing work of the Chambers Specialised in Business Matters of the courts of Milan, Rome and Naples, as well as by the reform of the Italian class action and by the prospective reform resulting from the transposition of the EU Representative Actions Directive. Moreover, the reform of the Annual Competition Law is likely to have a significant impact on private antitrust enforcement in terms of follow-on actions, not only because of the overall reinforcement of public enforcement, but also because of the introduction of several sector-specific rules, which, by decreasing the burden of proof generally falling on the plaintiff or authority, will indirectly promote the proposal of both follow-on and stand-alone actions.

Footnotes

1 Elisa Teti and Alessandro Raffaelli are partners at Rucellai & Raffaelli.

2 See the Official Journal of the Italian Republic, General Series No. 15 of 19 January 2017.

3 Marina Tavassi (president of the Court of Appeal and of the Chamber Specialised in Business Matters of Milan) reports how, 'in the first six months of [2020] alone, 50 new cases have been registered at the Specialised Chamber of Milan', in M Tavassi, 'La realtà del private enforcement in Italia', in Il private antitrust enforcement nelle Corti milanesi: una prospettiva europea (June 2020), p. 9 et seq., at http://eurojus.it/pdf/atti-convegno-GAM_rev.pdf.

4 Law No. 31/2019; see Section VII.

5 Draft of the Annual Law for Competition pursuant to Article 47 of Law No. 99/2009, 4 November 2021.

6 Decision of 19 July 2016 C(2016) 4673 relating to the AT.39824 Trucks case.

7 The Chamber Specialised in Business Matters of the Courts of Milan and Naples have also given some non-final rulings over preliminary and prejudicial issues, some of which have already been appealed and reached the Supreme Court of Cassation (see Court of Cassation Case No. 26862/2021 for the review of the judgment given by the Court of Appeal of Milan No. 188/2020 in the Iveco S.p.A. v. Cave Marmi Vallestrona S.r.l. case).

8 In accordance with this view, see Court of Cassation, No. 13407, 27 July 2012, and against, see Court of Cassation, No. 11443, 23 July 2003.

9 Court of Cassation, No. 2305/2007.

11 See, for instance, Court of Milan, No. 9759/2018, 4 October 2018, confirmed in appeal but pending at the Court of Cassation.

12 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ EU, 20 December 2012. See also P Manzini, Il Risarcimento del Danno nel Diritto della Concorrenza, (Giappichelli, 2017), p. XXVI.

13 See Legislative Decree, Article 12.

14 Damages Directive, Recital 16.

15 See, e.g., Court of Cassation, No. 15219/2007.

16 See Court of Cassation, No. 1020/2006.

17 See Court of Cassation, No. 11564/2015.

18 Court of Cassation, No. 21480/2013.

19 Court of Cassation, No. 20694/2013. See also Court of Cassation, No. 8989/2011.

20 Legislative Decree No. 206/2005.

21 Court of Naples, No. 2195/2013.

22 Court of Appeal of Milan, No. 3756/2017.

23 The action was brought by two consumer associations relying on a decision under which the Italian Competition Authority (AGCM), in May 2011, had opened a proceeding against four maritime companies (Moby, Grandi Navi Veloci, Snav and Forship). While awaiting the definition of the proceeding before the AGCM, the Court of Genoa stayed the action. However, because this decision was later annulled by the Regional Administrative Court of Latium, the claimants abandoned their action before the Court of Genoa. AGCM, Decision No. 22416 of 11 May 2011.

24 AGCM, Decision No. 27947 of 20 December 2018 and Court of Milan, No. 47649/2019.

25 The reform affects Title VIII bis, 'Of collective proceedings' (Article 840 bis to 840 sexies decies).

26 Article 840 ter.

27 Pursuant to Article 140 bis, Paragraph 6, the claim is inadmissible if: (1) it is clearly ungrounded; (2) the rights of the members of the class are not homogeneous; (3) a conflict of interest exists among the members of the class; and (4) the lead plaintiff is recognised as being unsuitable for handling the interests of the class.

28 Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC [2020] OJ L409/21.

29 Court of Cassation, Joint Session No. 16601/2017.

30 For instance, the Court of Naples has adopted this solution in its two most recent judgments related to the Trucks decision (i.e., BI.F.T. v. Iveco, Court of Naples No. 6319/2021, and B.F.T. v. Iveco, Court of Naples No. 8570/2021; both have since been appealed sub judice).

31 See, e.g., Court of Cassation, No. 3640/2009.

32 Such as Court of Cassation, Ruling No. 11211/2011 and Court of Cassation, Ruling No. 7039/2012.

33 Regional Administrative Court of Latium, No. 7467/2017, Ratiopharm v. Pfizer.

34 Draft of the Annual Law for Competition pursuant to Article 47 of Law No. 99/2009, 4 November 2021.

35 Article 30 of the draft Annual Law for Competition pursuant to Article 47 of Law No. 99/2009, introducing Article 14 quarter in the Law of 10 October 1990, No. 287 (Italian Competition Law).

36 However, there is dispensation to this rule. For instance, according to Article 9 of the Legislative Decree, small and medium-sized enterprises (SMEs) having a respective market share in the relevant marketplace below 5 per cent at the time of the antitrust violation, may be held liable for damages only towards their direct and indirect purchasers (special derogation that is not applied if an SME has played a leading role in the antitrust violation or coerced other businesses to participate therein, or if an SME has previously violated the competition laws).

37 For example, Beltrambini+17 v. Iveco et al., Court of Milan, No. 4491/2021.

38 See, e.g., Romano Trasporti v. Iveco, Court of Naples, No. 4815/2021.

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