By means of decree no. 3/2017, a new set of rules has been introduced which, both with regard to the substantive and procedural law, regulates claims for payment of compensation in cases of infringement of the laws on fair competition.

To begin with, the decree regulates “the right to compensation in favour of whosoever has suffered damage deriving from an infringement of the right to fair competition”. Included within that definition – in accordance with art. 2 of the decree – are articles 101 and 102 of the Treaty on the Functioning of the European Union and articles 2, 3 and 4 of Law no. 287/1990 (concerning unlawful agreements and abuse of a dominant position), as well as any other provision, national or European, aimed at achieving the same objectives established for the above mentioned norms.

Proceedings may be commenced by any person, natural or legal, or entity without legal personality, who has suffered damage caused by an infringement of the right to fair competition. More precisely, legitimacy to commence proceedings will be accorded both to the direct and indirect acquirers of the author of the infringement. The decree, therefore, implements the principles providing for a wide legitimacy to commence proceedings, which has already been recognised by European case law.

With regard to the claim for compensation, the decree clarifies that, firstly, it includes actual damage, loss of profits and interests, but excludes so-called punitive damages which exist in certain Anglo-Saxon jurisdictions. The decree also provides that compensation must be determined on the basis of arts. 1223, 1226 and 1227 of the civil code. In this regard, the following should be observed: i) the judge may ask for assistance from AGCM by formulating specific requests concerning the tendencies followed in cases of quantification of damages; ii) the judge may also ask for assistance on the issue of existence of the damage caused by an infringement of the right to fair competition, where said infringement involves a cartel.

The rules on the order of exhibition are also particularly relevant. They seek to overcome information asymmetry which is the main impediment for the obtainment of compensation by parties that have suffered antitrust damages. Upon petition filed by the parties, the judge may order the exhibition of evidence that he or she considers relevant not only to the parties concerned as well as to other third parties, but also to the competition authority (with regard to evidence contained in the file of the proceedings). The judge may proceed in such way with reference to the competition authority only in a residual case, that is when neither the parties nor the third parties can reasonably provide evidence, and provided that the order is considered proportionate.

An additional and important novelty is represented by the evidentiary efficacy of the decisions taken by the competition authority, which have already been considered by the case law. Pursuant to art. 7 of the decree, the infringement of the right to fair competition can be considered definitively ascertained, with respect to the author, when it has formed object of a decision of the AGCM that has become definitive. Such ascertainment is binding with regard to the nature of the violation and its extent, although issues related to the causal link and existence of the damage are excluded, as they will need to be proven by the claimant and ascertained by the court.

In that regard, finally, said proceedings will fall within the non-derogable competence of the Intellectual Property Divisions and will be dealt with exclusively by the courts of Milan, Rome and Naples.