In line with Article 101 of the Treaty on the Functioning of the European Union (the TFEU), Article 2 of Law No. 287/1990 (the Law), as lastly amended by Law No. 118/2022, prohibits and declares null and void any restrictive agreements, concerted practices, and decisions by associations, which have as their object or effect the substantial restriction of competition within the national market or in a substantial part of it. Article 101 TFEU and Article 2 of the Law can be applied in parallel by the Italian Competition Authority (the ICA).

Article 4 of the Law follows Article 101(3) TFEU, by providing for the possibility to exempt from the application of Article 2 of the Law restrictive agreements that meet certain conditions according to which the pro-competitive benefits they generate outweigh their negative effects. Undertakings wishing to benefit from this exemption are required to carry out a self-assessment to determine whether the restrictive agreement qualifies for the individual exemption. Cartels usually do not qualify for this exemption because, by definition, they have as their object a hardcore restriction of competition.

According to Article 1(4) of the Law, the ICA has to interpret and apply national competition rules in a way which is fully consistent with EU antitrust principles. As a result, ICA decisions usually refer to EU case law, decision-making practice and related guidelines. Furthermore, EU block exemption regulations are directly applicable in Italy when Article 101(1) TFEU applies to the conduct concerned. To date, the ICA has not adopted any block exemption regulation.

From a procedural point of view, Presidential Decree No. 217/1998 sets out the procedural rules for antitrust proceedings conducted by the ICA. In addition, Law No. 689/81 concerning administrative procedures in Italy may apply to specific cases not directly governed by Presidential Decree No. 217/1998, such as non-compliance with the order to eliminate the infringement concerned (Article 15(2) of the Law). Moreover, Legislative Decree No. 24/2023, implementing EU Directive 2019/1937 on the protection of persons who report infringements of Union law and national laws, introduced a number of provisions aimed at protecting whistle-blowers, including a ban on dismissing them.

Separate provisions for investigating cartel conduct in specific industries, and industry-specific defences and exemptions, are not included in the Law.

In August 2023, the Italian legislator granted new investigative powers to the ICA (see Article 1(5) of Decree Law No. 104/2023, converted into Law No. 136/2023). In particular, the ICA now has the power to: (i) identify ‘structural risks’ to competition in a given market or sector which, in the ICA’s view, cannot be remedied either by competitive forces or as a result of traditional competition law enforcement under Articles 101 or 102 TFEU (and the corresponding national provisions) or by merger control; and (ii) impose, even in the absence of a competition law infringement, structural and behavioural remedies that the ICA considers appropriate to address the competition concerns for the future. Such intervention could be extremely far-reaching. Structural remedies could include ordering de-mergers or divestitures, and behavioural remedies could involve anything from changes to pricing and distribution policies to internal separation orders. While the ICA already had the power to conduct sector-specific inquiries to identify competition problems in a given industry, these new powers are likely to have a significant impact on competition policy enforcement in Italy, including in the area of cartels. While it is too early to assess the impact of the new powers, it is expected that the ICA will rely on them to investigate market failures or concerns in markets without dominant players, for example, when challenging oligopolistic market structures. As a result, this reform is likely to broaden the ICA’s scope for intervention significantly.

Article 2 of the Law prohibits restrictive agreements and practices that have as their object or effect the prevention, restriction or distortion of competition. Therefore, if conduct is anticompetitive by its object, as is normally the case for cartels, there is no need to analyse its effects on the market in order to establish an infringement.

Pursuant to Article 2(1)(l) of Legislative Decree No. 3/2017, which implemented Directive 2014/104/EU (the Damages Directive) in Italy, cartels are defined in a way that is fully consistent with well-established EU law. In particular, cartels are defined as restrictive agreements or practices between competitors which amount to: (i) price fixing; (ii) output limitation; (iii) import or export restrictions; (iv) market or client allocation; (v) bid-rigging or (vi) a boycott.

In line with the EU well-established ‘effects doctrine’, where conduct takes place outside Italy but has restrictive effects in the Italian market or in a part of it, the ICA can apply Article 2 of the Law and Article 101 TFEU.

Pursuant to the Law, the ICA is the authority entrusted to investigate cartels.

(a) How an investigation is initiated

The ICA can start an investigation:

• on its own motion, as a result of its monitoring activities, after conducting sector inquiries, or after receiving information from regulators and authorities with which the ICA has entered into a memorandum of understanding (e.g. the public prosecutor’s offices in Rome and Milan, the Italian tax police (Guardia di Finanza), the national anti-corruption authority (ANAC), the national drug agency (AIFA), and the sector regulators for energy (ARERA), telecoms and media (AGCOM), banking (Banca d’Italia), insurance (IVASS), financial advisors (OFC) and transport (ART));
• after a leniency application (see question 8);
• after receiving a complaint from a third party (an entity or an individual), which may even submit a complaint anonymously through the whistle-blowing platform available on the ICA’s website.

(b) Pre-investigation

This phase includes all activities carried out by the ICA in order to decide whether to open formal antitrust proceedings. During the pre-investigation phase, the ICA proceeds independently and the parties have no right to participate (undertakings whose conduct is under scrutiny may not even know about the pre-investigation, unless they receive one or more requests for information).

There is currently considerable debate as to whether the pre-investigation phase should be concluded within a fixed time limit of 90 calendar days, starting from the moment the ICA has knowledge of the essential elements of the infringement (see Case C-511/23 – Caronte & Tourist).

(c) Decision to open the formal investigation

The ICA may open an investigation after assessing the information in its possession or brought to its attention by third parties. The decision to open the investigation, which is published on the ICA’s website, describes the undertakings involved, identifies the relevant markets affected by the conduct, and outlines the key issues in the case. It also identifies the case handler, sets a deadline for the final decision, enables the ICA to use stronger investigative powers, and triggers procedural safeguards to ensure the defence rights of the investigated parties. The ICA has no fixed time frame within which to close the proceedings and to issue a cease-and-desist order. This implies that, in practice, the ICA may extend the initial deadline as many times as required, for objective reasons. However, the ICA’s power to impose a fine (or a periodic penalty payment) is time-barred after five years starting from the day of the end of the infringement.

Once the ICA opens the formal investigation, the following stages differ depending on the specific type of procedure: (1) ordinary procedure; (2) commitments procedure; and (3) settlement procedure.

(d1) Ordinary procedure

Statement of Objections

Following a formal investigation, the ICA informs the parties of the results of its investigation in the Statement of Objections (the SO). The SO summarises the results of the investigation and the input provided by the parties. The SO is sent to all of the parties to the proceedings at least 30 days before the end of the investigation. It sets out the date on which the investigation formally ends. The parties may submit written replies to the SO up to 5 days prior to the date on which the investigation formally ends and may request a final hearing before the ICA board members.

End of the investigation

The date on which the investigation phase formally ends routinely coincides with the date of the final hearing. Therefore, the investigation normally ends with the final hearing. Usually, the final decision is published within a matter of weeks from the final hearing. If the ICA adopts an infringement decision, it can adopt a cease-and-desist order, and may impose a fine of up to 10% of the worldwide turnover achieved in the last financial year by the infringing undertaking. The ICA may also impose behavioural and structural remedies.

(d2) Commitments procedure

Within three months from the decision to open the investigation, the parties can offer commitments to address the ICA’s preliminary concerns (Article 14-ter of the Law). In exceptional cases, the ICA may accept commitments even after the three-month statutory deadline. If the ICA preliminarily concludes that the commitments offered are not manifestly inadequate, it publishes the commitments online and in its weekly official bulletin to market test them. Third parties can submit their observations on the commitments to the ICA within 30 days. After the market test phase, the party that offered the commitments can provide, within the following 30 days, comments on the third parties’ observations and may propose amendments to the initial commitments. If the ICA is satisfied with the result of the market test, the ICA can make the commitments binding for a given period of time (usually not beyond five years) and close the proceedings without any finding of infringement.

(d3) Settlement procedure

See question 14.

During the proceedings, the ICA has the power to:

(a) require undertakings to provide all necessary information (request for information);

(b) conduct unannounced inspections (dawn raids);

(c) order expert reports and economic and statistical analyses as well as arrange for consultation with experts; and

(d) fine undertakings in case of failure to cooperate.

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a) Request for information

The ICA can make written requests for information and documents from undertakings and any other legal or natural person. Until 2022, the ICA was entitled to make such requests for information only after formally opening the investigation. However, since 2022, the ICA can make such requests ‘at any moment’, even before the decision to formally open the investigation. Requests must: (i) provide the addressee with a reasonable period of time in which to reply, also considering the complexity of the information requested (in any event, this period cannot exceed sixty days, unless it is extended following a reasoned request); (ii) state the legal bases on which they are made and be proportionate; and (iii) not oblige the addressee to admit any infringement of competition law.

The ICA can also summon and hear any person (not necessarily working for, or at, an investigated undertaking) who may have useful information for the investigation.

b) Inspections

The ICA can enter and inspect all business premises, land or means of transport of the parties under investigation. Under the provisions introduced by Legislative Decree No. 185/2021 (the ECN+ Decree), which implemented Directive (EU) 2019/1 (the ECN+ Directive), the ICA is also entitled to inspect the private premises of directors, managers, and other members of staff of undertakings. The inspection of private premises can only be carried out with the prior authorisation of the judicial authority. That authorisation can only be provided if there are reasonable grounds to suspect that evidence that may be relevant to prove an infringement is stored in such premises. The inspections are normally unannounced.

During the inspections, the ICA can check business documents including electronic documents (even those stored on the cloud) and take copies (not originals). The ICA can also ask for explanations of facts and documents relating to the subject matter and the purpose of the inspection and can make oral requests for information and documents (that are to be reported, together with the corresponding oral replies, in written minutes).

During the dawn raid, the ICA is generally assisted by the Italian tax police (Guardia di Finanza).

If the inspection takes more than a day (which is very rare), the ICA can seal any business premises, records and IT systems until the inspection is over.

c) Expert reports

Under the provisions introduced by the ECN+ Decree, the ICA now has the power to order expert reports and/or economic and statistical analyses, as well as arrange for consultations with experts. The introduction of this new power is particularly welcome at a time when economic analysis is becoming increasingly important as cartels become more complex.

d) Fines

In the case of failure to cooperate or comply with investigative measures, the ICA can impose (i) a fine of up to 1% of the total turnover achieved worldwide in the event that the company refuses or fails, without justification, to provide the information or to provide the documents required (or, more generally, if it hinders the inspection or refuses to submit to it); and (ii) periodic penalties of up to 5% of the company’s average daily turnover for each day of delay in complying with the ICA’s request to undergo the inspection. In addition, the ICA can also impose fines from €150 to €25,823 and late penalty payments from €150 to €25,823 directly on individuals who, wilfully or through negligence, obstruct the inspection or refuse to submit to it.

The protection of legal privilege is not explicitly provided for in the Law. However, in competition proceedings the ICA follows EU case law according to which the protection of legal privilege is subject to two cumulative conditions: (i) the communication must be made for the purposes and in the interests of the client’s rights of defence; and (ii) the communications must come from independent lawyers (lawyers who are not bound to the client by a relationship of employment), who are authorized to exercise the profession in the EU. Therefore, in-house counsel does not enjoy legal privilege rights.

Undertakings may object to any request for or seizure of materials covered by professional legal privilege. The ICA should accept the application of privilege to: (i) all written communications exchanged with external counsel (i.e. addressed to or received from external counsel, seeking or giving legal advice); (ii) internal notes prepared by the undertaking which report on the content of communications with external counsel; and (iii) internal preparatory documents prepared by the undertaking exclusively for the purpose of seeking legal advice from external counsel, including documents that have not yet been exchanged with external counsel. If disputed, a copy of the document is to be put in a sealed envelope and, at a later stage, the ICA shall decide whether to put it in the case file or, if privileged, return it to the undertaking.

Pursuant to Article 15-quater of the Law, in order to be granted full immunity – or even a reduction in the fine – applicants must meet the following general conditions for the application of favourable treatment:

• terminate their participation in the alleged secret cartel no later than immediately after filing the leniency application unless the ICA requests or consents otherwise;
• cooperate with the ICA genuinely, fully, on a continuous basis and expeditiously, throughout the entire duration of the investigation;
• in the period prior to the formal submission of the application, did not destroy, falsify or conceal relevant evidence, and did not disclose to anyone (except to other competition authorities) the intention to make a leniency application and its content.

In addition, full immunity can only be granted to the first leniency applicant, provided that it meets the following cumulative conditions:

• discloses its participation in a secret cartel;
• provides evidence which: (a) enables the ICA, at the time it receives the application, to carry out a targeted inspection with respect to the cartel, provided that the ICA is not yet in possession of sufficient evidence to carry out such an inspection, or has not already done so; or (b) according to the ICA, is sufficient to establish the existence of a secret cartel, provided that the ICA is not yet in possession of sufficient evidence to ascertain the infringement and that no other undertaking has been granted immunity in relation to the same cartel.

Undertakings that coerced others to take part or remain in a cartel cannot be granted full immunity.

Leniency applicants must provide to the ICA all evidence in their possession – or to which they may have access – relating to the cartel. In particular, the following information shall be provided to the ICA:

• the applicant’s name and address;
• the name and address of the other undertakings participating in the secret cartel at issue;
• a detailed description of the secret cartel, including an indication of the goods and services covered by the cartel, its geographic scope and duration, as well as an illustration of the nature of the conduct, the aims pursued and the manner in which it was implemented;
• information about other applications for immunity or reduction of fines that the undertaking has already filed or intends to file with other competition authorities in relation to the same cartel.

Leniency applications may be submitted in writing or orally. The ICA informs the applicant of whether or not immunity has been granted. If an application for immunity is rejected, the applicant can request the ICA to assess its application for a reduction in the fine.

As at the EU level, there are two criteria on the basis of which the ICA defines the size of the reduction in the fine to be granted: (a) the timeliness of the cooperation provided; and (b) the evidentiary value of the evidence supplied (so-called ‘significant added value’).

However, in contrast to the EU level, under the Italian leniency programme the ICA enjoys a wide margin of discretion in determining the size of the reduction to be granted, as there are no rigid levels of reduction depending on the timing of the leniency application. In particular, the ICA may grant a fine reduction of more than 50% in exceptional circumstances, or grant the maximum fine reduction to multiple undertakings.

Pursuant to Article 15-sexies of the Law, immunity applicants may request the ICA to grant them a marker and set a deadline for the completion of the leniency application by providing all the evidence required. Undertakings applying for a reduction in the fine cannot request a marker.

The request must be duly reasoned, and the ICA has full discretion in deciding whether or not to grant the request.

When requesting a marker, the undertaking has to provide the ICA with at least the following information:

• its own name and address;
• the name and address of the other undertakings participating in the secret cartel at issue;
• a detailed description of the secret cartel, including an indication of the goods and services covered by the cartel, its geographic scope and duration, as well as an illustration of the nature of the conduct, the aims pursued and the manner in which it was implemented;
• information about other applications for immunity or reduction of fines that the undertaking has already filed or intends to file with other competition authorities in connection with the same cartel.

Leniency applicants are required to cooperate with the ICA genuinely, fully, on a continuous basis and expeditiously, throughout the entire duration of the proceedings. In particular, undertakings are required to:

• promptly provide the ICA with all relevant information and evidence in their possession;
• remain available for the ICA, promptly responding to any request;
• endeavour to ensure that, where necessary, their directors, managers and other employees – and, to the extent practicable, those who have been employees of the undertaking at an earlier time – may be heard by the ICA; and
• refrain from destroying, altering or concealing any relevant information or documents.

Moreover, applicants are required not to disclose to anyone (except to other competition authorities) the existence of the leniency application and its content, until the ICA has sent its SO.

The immunity granted by the ICA is conditional on the applicant meeting the general conditions for the application of favourable treatment throughout the whole investigation. As a result, a breach of such obligations may result in the grant of immunity being revoked.

Pursuant to Article 31-quater of the Law, current and former directors, managers and other employees of an immunity applicant enjoy protection from criminal penalties that may be imposed in relation to their involvement in the secret cartel covered by the immunity application. The grant of the exclusion from criminal penalties is conditional on the following requirements:

• submission of a valid immunity application to the ICA, the Commission or another national competition authority (NCA);
• the individuals in question actively cooperate with the relevant competition authority and the public prosecutor, providing useful information to secure proof of the offence and to identify other persons responsible for it;
• the application is submitted before the applicant becomes aware that criminal investigations have been opened for the same facts.

This provision is without prejudice to the right of victims to seek full compensation for any harm suffered.

The 2014 ICA Guidelines on Fines introduced a so-called ‘amnesty plus’ programme. In particular, it is possible that, once all aggravating and mitigating circumstances have been applied, the amount of the fine can be further reduced by up to 50% of the basic amount. The fine may be reduced in this way if, during the investigation, the undertaking provides information and documentation that, including by means of a targeted inspection, is considered decisive for the establishment of an infringement other than the one that is the subject matter of the investigation and that falls within the scope of the leniency programme. In such a case, the undertaking may also benefit from conditional immunity from fines for that other infringement.

The settlement procedure was introduced in Italy by the Annual Competition Law of 8 August 2022, which added a new provision (Article 14-quater) to the Law. On 22 May 2023, the ICA issued a Notice on settlements and set out more detailed procedural rules.

The current settlement procedure follows the EU one closely and consists of five main steps:

1. after the deadline to offer commitments has expired and until the notification of the SO, the ICA may send a written communication to all the parties to the proceeding, inviting them to express in writing their willingness to participate in discussions in order to reach a settlement agreement (parties may also wish to informally reach out to the ICA to express their interest in the procedure). The declaration of interest does not imply any admission of the infringement;
2. in the event that only some of the parties express their willingness to settle, the ICA may engage in bilateral discussions with such parties. Therefore, hybrid settlements are allowed. During the discussions, the ICA will inform the parties about the allegations it intends to raise against them, the evidence used to support the allegations and the range of potential fines. Upon request, the ICA may also give access to a non-confidential version of any available document within the case file, in order to enable the requesting party to ascertain its position;
3. if the outcome of these discussions is positive, the ICA may set a deadline by which the undertakings concerned must submit their written settlement proposals, reflecting the results of the discussions. The proposals shall include an acknowledgment of the infringement and specify the highest amount of the fine which the party is willing to accept. With the proposal, the parties shall also waive their rights to access the case file, to submit defensive briefs and to request the final hearing before the ICA board members;
4. if the ICA accepts the parties’ proposals, it shall issue an SO reflecting this, which the parties will be required to confirm;
5. finally, the ICA will issue the settlement decision in accordance with the agreement reached with the parties. Therefore, no court approval is required to complete the procedure.

However, the ICA may switch to the ordinary procedure at any moment. In such a case, the parties’ admissions of liability shall be deemed to be withdrawn and shall not be used as evidence.

Notably, the Italian procedure differs from the EU one with regard to the settlement’s scope of application and reduction of fines. Unlike the EU procedure, parties can apply for a settlement before the ICA not only in the case of infringements of Article 101 but also in the case of infringements of Article 102 TFEU (or the corresponding Articles 2 and 3 of the Law). Moreover, the percentage of the reduction in the fine that the ICA may grant varies from 10% in the case of secret cartels to 20% in other cases.

Like in the EU procedure, there are several reasons why a party may consider entering into a settlement with the ICA. First, if successfully completed, the procedure leads to a reduction in the fine. Secondly, the discussions leading to the settlement decision may represent a favourable opportunity for the parties to informally influence the ICA’s view on some aspects of the allegations. Moreover, the settlement procedure provides a higher degree of confidentiality for the case file, thus reducing the risk that relevant documents will be used in follow-on actions. Also, as settlement decisions tend to be shorter and less detailed, they may leave fewer grounds for follow-on claims. Finally, settlements allow for a quicker administrative process, thereby reducing legal costs.

On the other hand, there are also possible disadvantages in relation to the settlement procedure. First, as settling requires the admission of guilt, it may have negative reputational consequences. Also, it may trigger further investigations and reduce the likelihood of success for infringers in follow-on actions. Secondly, the application for settlement necessarily implies a restriction on the rights of defence. Finally, speeding up the administrative process may not always be a satisfactory option for infringers, as it may lead to earlier payment of fines and faster follow-on actions.

At the national level, the ICA can correspond with all public administrations and bodies subject to public law and can request cooperation from them for the performance of its functions. For instance, Law No. 262/2005 addresses the relationship between the ICA and Italian regulatory authorities in financial markets (such as Banca d’Italia and Consob). It provides for cooperation, including information sharing, and coordinating their separate actions, including by way of memoranda of agreement. Moreover, the ICA may use its powers in connection with the particular goals of investigations of the Italian tax police.

At the EU level, the ICA participates in the relationships established by EU law (including more recently by the ECN+ Directive, implemented in Italy by the ECN+ Decree). Indeed, Italy is part of the European Competition Network established by Regulation No. 1/2003. This requires cross-border cooperation between the Commission and the NCAs within the EU, including the ICA.

In 2023, the ICA requested investigative assistance from the competition authorities of Germany and the Netherlands under Article 22(1) of Regulation No. 1/2003 in order to carry out inspections in the jurisdictions of the requested authorities (Case No. A567). In turn, the ICA has provided investigative assistance twice, conducting inspections on behalf of the Commission and of a national authority.

At the wider international level, the ICA participates in the International Competition Network, the Organization for Economic Cooperation and Development and the United Nations Conference on Trade and Development.

There are administrative, civil and criminal sanctions.

Administrative sanctions: The ICA may order the cartel participants to cease their conduct and may impose behavioural and structural sanctions, as well as monetary sanctions. Only companies can be held liable for an antitrust infringement. There are no personal fines for individuals (except for failure to cooperate or comply with investigative measures).

Civil sanctions: Any agreement, decision or concerted practice which infringes the prohibition on cartels is null and void pursuant to Article 1418 of the Italian Civil Code.

Criminal sanctions: Criminal sanctions for anticompetitive conduct exist only for bid-rigging.

Fines must serve the dual purpose of punishing the anticompetitive conduct and deterring its recurrence. Therefore, the ICA will adjust the fine according to the gravity and duration of the conduct. The basic amount of the fine is calculated as follows: first, the ICA identifies the company’s annual sales of the product affected by the infringement. Then, a percentage is added to this amount, up to 30%, depending on the gravity of the infringement. Finally, this amount is multiplied by the duration of the infringement in years, months and days. The ICA may also decide to include in the basic amount an additional fixed amount (a so-called ‘entry fee’) of between 15% and 25% of the relevant turnover.

The basic amount may be further increased or decreased if certain aggravating or mitigating circumstances apply. For example, the fine may be increased if the company played a decisive or leading role in the cartel. Conversely, the fine may be reduced if the company’s involvement was limited or if the company adopted a specific compliance programme in line with national and European best practices. Furthermore, the fine may be increased by up to 50% for deterrence if the company responsible for the infringement had a particularly high worldwide turnover in relation to the value of sales of the goods or services that are the subject of the infringement, or if it belongs to a group of significant economic size.

Specific reductions are provided for leniency applicants and where the companies provide evidence of a new infringement that is different to the one under investigation.

In any event, the fine imposed on an undertaking cannot exceed the statutory limit of 10% of the total turnover in the last full business year preceding the adoption of the decision against the infringing undertaking. If it exceeds the statutory limit, the fine must be reduced accordingly.

Parent companies are liable for the anticompetitive conduct of their subsidiaries if the parent company exercises substantial control over the subsidiary. In line with EU case law, control is presumed in the case of wholly-owned subsidiaries.

Both private actions and class actions are available for infringement of the cartel rules in Italy.

Private enforcement, particularly in the form of individual or group actions (but not yet class actions, for further details on which see below), has been increasing in the past few years in Italy, especially following the adoption of the Damages Directive and its national implementation (Legislative Decree No. 3/2017). While so-called follow-on actions (i.e. actions that rely on the finding of a competition law infringement by a competition authority such as the Commission or the ICA) are most common, so-called standalone actions (i.e. actions where applicants also need to demonstrate the competition law infringement by which they claim to have been damaged) are possible.

Class actions have long been reserved for consumers and their organisations, but a recent legislative reform (Law No. 31/2019) also entitles businesses to bring class actions. However, as far as we are aware, class actions for an infringement of the cartel rules have not been brought in Italy to date.

In Italy, litigation funders actively promote and start actions.

While Italian law does not provide for an exhaustive list of the types of damages that can be recovered, they normally include actual loss, loss of profit and interest. Moreover, the amount of damages that may be determined at the end of an action is normally increased to account for currency revaluation. The general principle is that successful applicants should be put in the same condition they would have been if the competition law infringement had not occurred.

Damages are typically quantified by an independent expert appointed by the Court. The expert is asked to answer a set of questions, which are defined by the Court after it has heard the parties, and relate to the assessment of the damages and the damage itself. Parties may appoint their own experts who liaise with the court-appointed expert by, inter alia, attending meetings, submitting data, and filing briefs and replies.

There is no established way to quantify damages, although the methodologies outlined in the Commission’s Practical Guide on quantifying antitrust harm in damages actions (SWD(2013) 205, 11 June 2013) normally play an important role.

That said, under certain conditions courts are empowered to quantify damages based on equitable principles. However, in complex litigation matters such as those relating to competition law infringements, quantification based on equitable principles is unusual and is normally limited to minor aspects of the estimation exercises or adjustments to the estimates of the court-appointed expert.

Final and interim decisions of the ICA may be appealed before administrative courts, i.e. the Regional Administrative Court of Lazio (the TAR Lazio) in the first instance and the Council of State in the second instance.

Grounds of appeal against ICA decisions include: (i) violations of law; (ii) lack of competence; and (iii) excess of power. Based on these grounds, applicants may allege violations regarding, for example: (i) factual findings of the ICA; (ii) compliance with procedural rules; (iii) the legal assessment of the case; and (iv) the amount of the fine imposed. Regarding the amount of the fine imposed, both the TAR Lazio and the Council of State can carry out a full jurisdictional review, meaning that they may even directly re-determine the amount of the fines originally imposed by the ICA.

Filing an appeal has no automatic suspensive effect. Applicants must comply with decisions of the ICA (including by paying the relevant fines), unless they obtain a suspension order, in which case they would typically be requested to post a bank guarantee.

Other than appealing first before the TAR Lazio and then before the Council of State, under certain conditions applicants could in theory appeal ICA decisions by means of an extraordinary appeal to the President of the Italian Republic. In practice, this action is very rarely used, including because, at the request of the respondent (the ICA), the action may be converted into an ordinary appeal before the TAR Lazio.

ICA decisions may be appealed before the TAR Lazio within 60 days following their notification to the undertaking. The appeal must be notified to the ICA and to any other interested party as the case may be (e.g., the immunity recipient). Within 15 days from the latter notification, the appeal must be filed with the TAR Lazio.

Once the TAR Lazio has scheduled the hearing on the merits of the appeal, the parties may file (i) documents up to 20 days before the hearing; (ii) briefs up to 15 days before the hearing; and (iii) reply briefs up to 10 days before the hearing.

Following the hearing on the merits of the appeal, the TAR Lazio delivers its judgment, in theory within 23 days but delays are common. Usually the judgment is instead delivered two to three months after the hearing. It may also take longer where the judgment is suspended pending a referral to the ECJ or a more in-depth procedural investigation (both of which are extremely unusual).

Judgments of the TAR Lazio may be appealed before the Council of State within 30 days from their notification or within three months from their publication in case of lack of notification. The procedure before the Council of State follows the same rules as that before the TAR Lazio.

Council of State rulings could be appealed for revocation before the same court and, in theory, before the Italian Supreme Court but only on grounds of jurisdiction. Both procedures require special conditions and are rarely used in practice and even more rarely upheld.

As mentioned, ICA decisions could in theory be appealed to the President of the Italian Republic. Extraordinary appeals to the President of the Italian Republic have to be lodged within 120 days following notification of the ICA decision.

Case I864 – Price of biofuel for motor vehicles

On 11 July 2023, the ICA initiated proceedings against some of the largest oil companies which are active in Italy for alleged collusive behaviour in relation to fixing the price of the ‘bio-component’ (i.e. the component derived from plant sources, biomass, or recycled oils) of motor fuels (Decision No. 30705 of 11 July 2023). Under current national legislation, at least 10% of the blend that makes up motor fuel sold in Italy must be biofuel. The investigation was launched following a report received by the ICA from a whistle-blower. According to the report, the oil companies allegedly agreed to apply the same price increases for the ‘bio component’ as those communicated from time to time by one or more ‘leading’ companies to a trade magazine and announced by the latter in its publications. The ICA alleges that the collusive conduct began in January 2020 and enabled the oil companies to increase the price of the ‘bio component’ regardless of the actual costs incurred by each oil company to procure biofuel, thereby distorting competition in the market for the distribution of motor fuels in Italy. The investigation is still ongoing. This case is particularly relevant as the increased use of biofuels for transport is one of the tools on which the EU relies in order to: (a) reduce its dependence on imported energy; (b) influence the fuel market for transport; and (c) improve the security of energy supply in the medium and long term.

Case I835 – Bid-rigging cartel

In February 2022, the ICA imposed a fine of approximately €10 million on five suppliers of water meters for their involvement in a bid-rigging cartel. The cartel affected a series of public tenders launched between December 2011 and September 2019 for the provision of cold-water meters (Decision No. 29981 of 2 February 2022). The collusive strategy was based on a sophisticated allocation mechanism, whereby the companies first identified the party to be awarded the contract, and then determined the behaviour to be adopted by the other companies to achieve the agreed outcome in terms of maximum applicable discounts, minimum unit prices and non-participation in tenders. This proceeding was the first investigation that the ICA opened of its own motion based on a document received from an anonymous source, which provided an important contribution to the gathering of evidence. In particular, the ICA was able to collect emails, faxes, WhatsApp chats, Skype chats, and evidence of secret meetings that demonstrated how the parties had colluded to breach bid-rigging rules.

In January 2023, in the context of an internal reorganisation, the ICA set up a new directorate – Cartels, Leniency and Whistle-blowing – with the aim of increasing the detection of cartels and encouraging the use of tools such as the leniency programme, especially in cases of bid-rigging. In February 2023, the ICA launched its own whistle-blowing platform on its website. The platform is equipped with an encrypted system that enables whistle-blowers to send information in an anonymous way regarding the alleged anticompetitive practices and the undertakings involved. Legislative Decree No. 24/2023 introduced a number of provisions in order to protect the whistle-blower, such as a prohibition on his/her employment dismissal. The whistle-blowing platform aims to strengthen the fight against secret cartels and other anticompetitive practices by encouraging collaboration from individuals who are reluctant to reveal their identity. Since the launch of this tool, the ICA has received over 100 reports, leading to several ongoing interactions with anonymous complainants and the opening of three cartel investigations.

Cooperation with other NCAs remains a priority for the ICA. Collaborating on cross-border cartel cases allows the agencies involved to delineate the scope of parallel proceedings, target and coordinate investigative steps such as dawn raids more effectively, reduce duplication of effort, and streamline the information-gathering process. In February 2023, the ICA signed a Memorandum of Understanding with the Australian Competition Authority. This memorandum covers key areas of interest including cartels, digital platforms, and market studies. Similar agreements are in place with other NCAs across several European countries, such as France and Spain, as well as non-European countries such as Brazil.

Over the next 12 months, the ICA is expected to continue enhancing the proactive detection of cartels, mainly by implementing investigations of its own motion and using the whistle-blowing platform. This tool is likely to provide the ICA with insider knowledge and assistance, which can be a powerful means to uncover cartels and other anticompetitive practices more swiftly than might otherwise be possible.

The ICA is currently conducting six cartel investigations: one opened in 2024 (Case I868), four opened in 2023 (Cases I864, I865, I866 and I867) and one opened in 2022 (Case I859). These investigations concern various industry sectors. One relates to an alleged coordination of commercial strategies among pharmaceutical companies to delay the entry into the Italian market of a drug intended for the treatment of eye diseases (Case I868). Another focuses on alleged price coordination in relation to biofuel (Case I864, see question 24 above). Another involves an alleged anticompetitive agreement among terminal operators in container handling at the port of Naples (Case I865). Another investigation concerns seven foundries suspected of coordinating list price increases for cast iron (Case I866). Another one relates to an alleged anticompetitive agreement among nine major producers of hollow glass (Case I867). Finally, one investigation concerns an alleged bid-rigging conduct in the context of the purchase and supply of radiopharmaceuticals (Case I859). Final decisions on most of these cases are expected to be adopted in the next 12 months.