Private antitrust enforcement is one of the means devised by the European legislator to protect fair competition within the territory of the Union. It is the subject of Directive 2014/104/EU, the aim of which is to ensure, also at a private level under civil law, effective enforcement of the provisions contained in the Treaty on the Functioning of the European Union.

In Italy, it was Legislative Decree No. 3 of 19 January 2017 that transposed the relevant provisions and scanned an ad hoc discipline on the subject of compensation for antitrust damage.

What is meant by private antitrust enforcement?

As a preliminary remark, it is worth recalling that the antitrust enforcement system is based on a dual track of protection, defined by public and private enforcement. Both have been conceived with the aim of preserving the single market from competition-distorting conducts, including cartels and abuse of dominant position under Articles 101 and 102 TFEU (corresponding to Articles 2 and 3 of Law No. 287 of 10 October 1990).

Public enforcement is the public channel, entrusted to the European Commission and the national enforcement authorities (including, in Italy, the AGCM).

Private enforcement, on the other hand, is the private channel, built on the initiatives of private individuals, i.e., companies and consumers. They have been given the power to bring actions before the ordinary courts if their rights are infringed by a company's contra legem behaviour. In detail, they can:

Sources of law on private enforcement

Having clarified what is meant by private enforcement, it is necessary to examine the relevant European and national legislative texts.

At supranational level, the legislator has only intervened in recent years. For a long time, the legislator refrained from legislating in this field because it falls outside the exclusive competence of the European Union, but rather within the competing competences governed by the principle of subsidiarity.

Thus, private enforcement was born and developed thanks to the impetus of the Court of Justice, which has expressed its views on the matter in several judgments that have built up a large body of case law (e.g., the Courage judgment of 20 September 2001 or the Manfredi judgment of 13 July 2006). Even recently, the European Court of Justice, in Otis c. Land Obero ̈sterreich, Case C‑435/18, rules:

“Article 101 TFEU must be interpreted as meaning that persons who are not active as suppliers or customers on the market affected by a cartel, but who provide subsidies, in the form of promotional loans, to buyers of the products offered on that market, may seek an order that the undertakings which participated in that cartel pay compensation for the losses they suffered as a result of the fact that, since the amount of those subsidies was higher than what it would have been without that cartel, those persons were unable to use that difference more profitably”.

The importance that the subject has gradually assumed has led to the definition of Directive 2014/104/EU, which entered into force on 25 December 2014 (hereinafter the Damages Directive).

The Damages Directive should have been transposed by Member States by 27 December 2016 at the latest. Yet, Italy only transposed it in 2017, with Legislative Decree No. 3 of 19 January 2017, which entered into force on 3 February 2017 (hereinafter, the Decree).

The Decree introduced into Italian law a complete set of rules for actions for damages arising from the violation of competition law. First of all, it made the specialised sections of only three Italian courts competent to settle disputes exclusively: the courts of Milan, Rome and Naples. Secondly, it governed:

The relationship between public and private enforcement: the effects of Commission and national enforcement decisions in civil proceedings.

Although independent remedies, public and private enforcement are complementary, integrated and in strong synergy with each other. This is evident in cases brought before civil courts on the basis of follow-on actions. On such occasions, the court seized is bound by the antitrust rulings of the main players on the public side.

Indeed, on the one hand, the courts cannot disregard the Commission's decisions, which is in line with the principle of primacy governing relations between the European Union and the Member States. On the other hand, pursuant to Article 9 of the Damages Directive, they are also bound by the rulings of the domestic guaranteeing authorities.

In Italy, the content of the above-mentioned article was transposed in Article 7 of the Decree. The Italian legislator, however, has made a number of specifications to the original text, with the intention of limiting the subjection of the ordinary judge to what is, in fact, a mere administrative ruling. Article 7 states that the decisions of the AGCM are to be considered binding only:

In addition, the appeal judges (TAR and Consiglio di Stato) were given the power to verify the facts underlying the challenge to AGCM's measure, as well as the possibility of assessing the technical profiles that do not present any margin of opinion.

Conclusions

Private enforcement, as described above, has become an indispensable part of the competitive landscape. The 'new' power of private individuals to sue for damages is a deterrent for companies, as it can be likened to an additional sanction for their misconduct.

Finally, it seems appropriate to note that the legislation examined has brought the European Union - albeit still partially - into line with the legal tradition of the country of origin of antitrust law, the United States of America.

On the other side of the Atlantic, approximately 90% of proceedings are initiated on the initiative of competitors or consumers, who have always been considered better able to reconstruct the elements making up the case, being personally affected by the harmful effects of the unlawful act.

In any case, the main driving force towards an increasingly central role of private antitrust enforcement can only be represented by an increased culture of competition among the various market players, together with the awareness of the possibility of exercising these remedies by the parties actually involved, i.e., the injured parties.