PAYMENT OF COMPENSATION IN CASES OF UNLAWFUL ANTITRUST DAMAGE: ENACTMENT OF THE NEW LEGISLATIVE DECREE N. 3/2017

08/03/2017

On 3 February 2017 the new legislative decree no. 3/2017 came into force. The new decree implements directive 2014/104/EU and regulates claims for compensation in cases of infringement of the right to fair competition caused by a company or an association of companies. The decree introduces new and relevant elements with regard to the procedural requirement of legitimacy to commence proceedings, the payable damages, the efficacy of the AGCM decision and territorial competence.


 

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.

RISARCIMENTO DEL DANNO DA ILLECITO ANTITRUST: ENTRA IN VIGORE IL DECRETO LEGISLATIVO N. 3/2017

08/03/2017

In data 3 febbraio 2017 è entrato in vigore il decreto legislativo n. 3/2017 che, in attuazione della direttiva 2014/104/UE, disciplina le azioni per il risarcimento del danno a causa di una violazione del diritto della concorrenza da parte di un’impresa o di una associazione di imprese. Il decreto introduce rilevanti novità in materia di legittimazione ad agire, danno risarcibile, efficacia delle decisioni dell’AGCM e competenza territoriale.


 

Con il decreto n. 3/2017 è stata introdotta nel nostro ordinamento una nuova disciplina che regola, sia sotto il profilo sostanziale che sotto il profilo processuale, la tutela risarcitoria per le violazioni delle disposizioni in materia di diritto della concorrenza.

Con riferimento all’ambito applicativo, innanzitutto, il decreto disciplina “il diritto al risarcimento in favore di chiunque abbia subito un danno a causa di una violazione del diritto della concorrenza”, nel quale rientrano – per espressa disposizione legislativa (art. 2 del decreto) – gli articoli 101 e 102 del Trattato sul funzionamento dell’Unione Europea, gli articoli 2, 3 e 4 della Legge n. 287/1990 (in materia di intese e abuso di posizione dominante), ed ogni altra disposizione, nazionale o europea, volta a perseguire le stesse finalità di tali norme.

Potrà agire in giudizio qualunque persona, fisica o giuridica, o ente privo di personalità, che ha subito un danno derivante da una violazione del diritto della concorrenza. Sarà legittimato ad agire, più precisamente, sia l’acquirente diretto sia l’acquirente indiretto dell’autore della violazione. La normativa, quindi, dà applicazione al principio che prevede in materia un’ampia legittimazione ad agire, già riconosciuto dalla giurisprudenza comunitaria.

Per quanto riguarda il danno risarcibile, il decreto chiarisce in primo luogo che esso comprende il danno emergente, il lucro cessante e gli interessi, con esclusione dei c.d. danni punitivi, previsti negli ordinamenti anglosassoni. La normativa stabilisce inoltre che esso va determinato in base agli articoli 1223, 1226 e 1227 del codice civile. A questo proposito risultano degne di nota: i) la possibilità per il giudice di chiedere assistenza all’AGCM formulando specifiche richieste sugli orientamenti che riguardano la quantificazione del danno, nonché ii) la presunzione circa “l’esistenza del danno cagionato da una violazione del diritto alla concorrenza consistente in un cartello.

Particolarmente rilevante è inoltre la disciplina relativa all’ordine di esibizione, volta a superare l’asimmetria informativa che si pone quale principale ostacolo per ottenere il risarcimento da parte dei soggetti danneggiati da illeciti antitrust. Il giudice potrà infatti ordinare l’esibizione delle prove che riterrà rilevanti non solo alle parti e ai soggetti terzi – su istanza motivata di parte -, ma anche all’autorità garante della concorrenza (con riferimento alle prove contenute nel fascicolo di un procedimento). Tale ultima possibilità è prevista in via residuale, ovvero quando né le parti né i terzi sono ragionevolmente in grado di fornire la prova, e purché l’esibizione sia valutata come proporzionale.

Un’ulteriore novità fondamentale riguarda, poi, l’efficacia probatoria delle decisioni dell’autorità garante della concorrenza, già oggetto di discussione giurisprudenziale. Ai sensi dell’art. 7 del decreto, infatti, si deve considerare definitivamente accertata, nei confronti dell’autore, la violazione del diritto della concorrenza constatata da una decisione dell’AGCM divenuta definitiva. L’accertamento risulta vincolante per quanto riguarda la natura della violazione e la sua portata, ma risultano esclusi i profili relativi al nesso di causalità e all’esistenza del danno, che dovranno quindi essere provati dall’attore e accertati in giudizio.

I giudizi in questione, infine, già attribuiti alla competenza inderogabile delle Sezioni Specializzate in materia di impresa, saranno trattati esclusivamente dagli uffici giudiziari di Milano, Roma, e Napoli.

PAYMENT OF COMPENSATION IN CASES OF UNLAWFUL ANTITRUST DAMAGE: ENACTMENT OF THE NEW LEGISLATIVE DECREE N. 3/2017

08/03/2017

On 3 February 2017 the new legislative decree no. 3/2017 came into force. The new decree implements directive 2014/104/EU and regulates claims for compensation in cases of infringement of the right to fair competition caused by a company or an association of companies. The decree introduces new and relevant elements with regard to the procedural requirement of legitimacy to commence proceedings, the payable damages, the efficacy of the AGCM decision and territorial competence.


 

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.

COURT COMPETENT TO DECIDE ON A CLAIM FOR PAYMENT OF DAMAGES CAUSED BY TRANSNATIONAL SALES VIA INTERNET WEB SITES? FOR THE ECJ IS THE COURT OF THE STATE IN WHICH DELIVERY OCCURS!

The European Court of Justice (ECJ) has declared that Art. 5, point 3, Council Regulation n. 44/2001, dated December 22, 2000, concerning the jurisdiction, acknowledgement, execution and implementation of civil and commercial decisions, must be interpreted – in order to ascertain the jurisdiction with reference to a claim for damages based on a breach of the rule prohibiting sales outside of a selective distribution network – in the sense that endowed with jurisdiction are the courts of the State where the damage (i.e. violation of the prohibition) has occurred. It is irrelevant that the internet websites offering goods in breach of the selective distribution network should operate in Member States different from that of the court in which proceedings have been commenced.


 

The French company Concurrence entered into an agreement with Samsung for the distribution of high range products bearing the Korean mark “Elite”. Such contract provided for a prohibition from selling those products also via the internet.

Samsung subsequently notified Concurrence of the termination of their contractual relation, claiming breach on part of Concurrence of the online sale prohibition provided under the selective distribution agreement. Concurrence, for its part, disputed the validity of such clauses claiming, in particular, that they had not been uniformly applied to all distributors, some of which sold the products at issue on various Amazon websites, without thus provoking any reaction from Samsung.

What followed, then, were two proceedings (one before the Paris Court and the other before the Paris Court of Appeal), with Concurrence losing in both cases, who then appealed to the French Supreme Court. Concurrence argued that the judgment of the Paris Court of Appeal had erroneously declared the lack of jurisdiction of the French courts over proceedings involving proceedings concerning Amazon websites operating outside of the Member State territory. In particular, according to Concurrence, the Paris Court of Appeal had wrongfully failed to ascertain whether the sales system via Amazon internet websites allowed for the shipping of products sold not only within the Member State of origin of the internet website in question, but also within other Member States, and especially in France, which would have justified the finding of jurisdiction of the French courts.

The French Supreme Court decided to suspend proceedings and referred the question to the Court of Justice of the European Union, requesting the exact interpretation of art. 5, para. 4 of Regulation no. 44/2001, with a view to ascertaining the jurisdiction conferred by that provision with regard to a case of claims for damages put forward on the basis of a violation of the prohibition of sale outside of the selective distribution network determined by the offer, on websites operating in different Member States, and concerning products forming the object of said network.

With the judgment herewith considered, the European Court of Justice held that, in such cases, the judge endowed with jurisdiction is that of the Member State in which the damage actually occurs, taking into account the reduction of the volume of sales suffered by the store and his consequent loss of profits, also noting that it is irrelevant that the internet websites in which the offer of objects falling within the selective distribution network should operate in Member states different from that of the court in which proceedings have been commenced.

COURT COMPETENT TO DECIDE ON A CLAIM FOR PAYMENT OF DAMAGES CAUSED BY TRANSNATIONAL SALES VIA INTERNET WEB SITES? FOR THE ECJ IS THE COURT OF THE STATE IN WHICH DELIVERY OCCURS!

The European Court of Justice (ECJ) has declared that Art. 5, point 3, Council Regulation n. 44/2001, dated December 22, 2000, concerning the jurisdiction, acknowledgement, execution and implementation of civil and commercial decisions, must be interpreted – in order to ascertain the jurisdiction with reference to a claim for damages based on a breach of the rule prohibiting sales outside of a selective distribution network – in the sense that endowed with jurisdiction are the courts of the State where the damage (i.e. violation of the prohibition) has occurred. It is irrelevant that the internet websites offering goods in breach of the selective distribution network should operate in Member States different from that of the court in which proceedings have been commenced.


 

The French company Concurrence entered into an agreement with Samsung for the distribution of high range products bearing the Korean mark “Elite”. Such contract provided for a prohibition from selling those products also via the internet.

Samsung subsequently notified Concurrence of the termination of their contractual relation, claiming breach on part of Concurrence of the online sale prohibition provided under the selective distribution agreement. Concurrence, for its part, disputed the validity of such clauses claiming, in particular, that they had not been uniformly applied to all distributors, some of which sold the products at issue on various Amazon websites, without thus provoking any reaction from Samsung.

What followed, then, were two proceedings (one before the Paris Court and the other before the Paris Court of Appeal), with Concurrence losing in both cases, who then appealed to the French Supreme Court. Concurrence argued that the judgment of the Paris Court of Appeal had erroneously declared the lack of jurisdiction of the French courts over proceedings involving proceedings concerning Amazon websites operating outside of the Member State territory. In particular, according to Concurrence, the Paris Court of Appeal had wrongfully failed to ascertain whether the sales system via Amazon internet websites allowed for the shipping of products sold not only within the Member State of origin of the internet website in question, but also within other Member States, and especially in France, which would have justified the finding of jurisdiction of the French courts.

The French Supreme Court decided to suspend proceedings and referred the question to the Court of Justice of the European Union, requesting the exact interpretation of art. 5, para. 4 of Regulation no. 44/2001, with a view to ascertaining the jurisdiction conferred by that provision with regard to a case of claims for damages put forward on the basis of a violation of the prohibition of sale outside of the selective distribution network determined by the offer, on websites operating in different Member States, and concerning products forming the object of said network.

With the judgment herewith considered, the European Court of Justice held that, in such cases, the judge endowed with jurisdiction is that of the Member State in which the damage actually occurs, taking into account the reduction of the volume of sales suffered by the store and his consequent loss of profits, also noting that it is irrelevant that the internet websites in which the offer of objects falling within the selective distribution network should operate in Member states different from that of the court in which proceedings have been commenced.