Abstract
Any analysis of the development of transactional institutions in the Italian legal system, as well as any investigation into the nature and functions of such institutions, inevitably depends on the assessment of the entities involved in any such transactions. Such exercise therefore requires a consideration of the various frameworks for negotiation, and their manifold possible outcomes, within the wider context of public administration.
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Notes
- 1.
A number of legal expressions can be used, such as compromise, settlement, agreement, etc. In the context of this work, all such terms will be used regardless of any nuance or difference they may have, i.e. taking into account their common basis: that of an agreement between two or more parties, normally aimed at replacing a decision which would otherwise been taken by a competent Court or entity.
- 2.
Italian Civil Code, R.D. 16 March 1942, n. 262, Article 1965, “a settlement is a contract whereby the parties, by mutual concessions, end pending litigation or prevent litigation that could arise between them. Mutual concessions can also create, modify, or extinguish relationships other than those which arise from the subject matter of the claim and the dispute between the parties.”
- 3.
Italian Civil Code, R.D. 16 March 1942, n. 262, Article 1966, “in order to compromise, the parties must have the capacity to dispose of the rights which are the subject matter of litigation. A compromise is void if such rights, either by their nature or by express provision of the law, cannot be disposed of by the parties.”
- 4.
Italian Constitution, Article 97 “Public offices are organised according to the provisions of law, so as to ensure the efficiency and impartiality of administration.”
- 5.
E. Guicciardi, La transazione degli enti pubblici, in Arch.Dir.Pubbl. 1936, pagg. 64 e ss. e 205 e ss.
- 6.
See Corte dei Conti, in Sezione Regionale di Controllo per la Lombardia, LOMBARDIA/1116/2009/PAR.
- 7.
See Legislative Decree n. 546 of 31 December 1992, Article 17-bis; in relation to in relation to insolvency proceedings, see Article 182-bis, Decree n. 267 of 16 March 1942.
- 8.
The so-called patteggiamento, or more technically “applicazione della pena su richiesta”; see Italian Code of Criminal Procedure, articles 444 et seq.
- 9.
Autorità Garante della Concorrenza e del Mercato, hereinafter translated as Competition Authority. It is a public body, having administrative powers, which is established and operates pursuant to Law. n. 287 of 10 October 1990, Articles 10 et seq.
- 10.
Decree 4 July 2006, no. 223 and subsequent law 4 August 2006, no. 248, which introduced Articles 14 bis and 14 ter of Law. n. 287 of 10 October 1990.
- 11.
Law. n. 287 of 10 October 1990, Article 14 ter: “Within three months from notification of the launch of an investigation into the possible violation of Articles 2 or 3 of this law or Articles 81 or 82 of the EC Treaty, companies may offer commitments that would correct the anti-competitive conduct which is the subject of the investigation. The Authority may, after having assessed the suitability of such commitments and within the limits of EU law, make them binding on for those companies and terminate the proceeding without ascertaining the contravention.”
- 12.
See Notice on the non-imposition and reduction of fines under Article 15 of law no. 287 of 10 October 1990, as modified by Resolution no. 21092 of 6 May 2010, published in Bulletin no. 18 of 24 May 2010.
- 13.
While remedies for restrictive agreements or abuse of dominance share the same ratio and procedures, commitments within the framework of merger control have a slightly different nature; these latter will be dealt with separately at Sect. 10.3 below.
- 14.
See AGCM Resolution no. 16015 of 12 October 2006 for a detailed layout of the procedural rules, specifically on the submission of draft commitments to be further discussed by/with the Competition Authority.
- 15.
Another important step is the publication of the proposed commitments, triggering a 30-day deadline for third parties to make their submissions and comments (the so-called market test), further to which commitments can still be modified before the Competition Authority decides.
- 16.
Law. n. 287 of 10 October 1990, Article 14 ter.
- 17.
See M. Siragusa, “Le decisioni con impegni”, in “Venti anni di Antitrust”, Giappichelli, Torino, 2010, pp. 391 et seq.
- 18.
As modified by AGCM Resolution no. 21092 of 6 May 2010.
- 19.
The immediate stop of an infringing activity may be subject to exceptions, whereby it is appropriate for the ongoing investigation that the undertaking goes on participating in the cartel.
- 20.
Even the notice provides that “before filing a leniency application, an undertaking may approach the authority even on an anonymous basis in order to seek guidance on this notice”; see paragraph 9.
- 21.
Paragraph 7 c), “when contemplating the filing of a leniency application, the undertaking must not inform anyone of such intention, except other competition authorities.”
- 22.
Constitution of Italian Republic, Article 24.
- 23.
Trade secrets, as well as sensitive commercial information, are normally regarded as deserving confidentiality.
- 24.
Specifically, privilege against self-incrimination is provided by the European Convention for Human Rights and Fundamental Freedom and has been confirmed by the ECJ case 374/87, Orkem v Commission of the European Communities, ECR 3283.
- 25.
It is to be recalled here that civil law systems still allow a limited degree of discovery, and therefore the burden of proof on the plaintiff can even play a significant role in discouraging private enforcement options. As to how the system works, also in combination with public enforcement mechanism, see G.A. Muscolo, “Public e private enforcement”, in “Venti anni di antitrust”, Giappichelli, Torino 2010, p. 1015.
- 26.
This means, for instance, that no civil Court addressed for the potential violation of competition rules is due to stay the proceedings if a parallel action is handled by the Competition Authority.
- 27.
See, inter alia, Court of Cassation, 2 February 2005, n. 2305.
- 28.
See Court of Cassation, of 13 February 2009, n. 3640; see also M. Tavassi, “Il ruolo dei giudici nazionali nel private enforcement, competenze concorrenti”, in “Venti anni di antitrust”, Giappichelli, Torino 2010, p. 1012.
- 29.
See Gregorio Gitti, “Gli accordi con le Autorità indipendenti”, in “Venti anni di antitrust”, Giappichelli, Torino 2010, pp. 1111 et foll., who underlines the transactional dynamics of procedures involving commitments and highlights the contractual nature of such remedies.
- 30.
By furthering the analogy with civil law mechanism, one could think of the ancient principle of Roman law, inadimplenti non est adimplendum, now reflected in Article 1460 of Italian Civil Code.
- 31.
In 2013, out of 80 concentration filings with the Italian Competition Authority, only one has been investigated as possibly implying noncompliance.
- 32.
One should not forget that competition law, albeit unaltered by criminal law in the Italian legal system, is the closest legal environment and a natural one to look at when devising enforcement options.
- 33.
Again, the criminal system clearly shows its weak points when it comes to defending third parties’ rights in the framework of plea bargain procedures, as these latter normally compress the expectation to “full justice,” e.g. for parties damaged by the crime which will miss the advantages of a full trial, for instance in the lack of evidence and in the difficulty to obtain damages.
- 34.
This is, mutatis mutandis, the pattern in criminal law, where the roles of prosecuting and judging magistrates are clearly distinguished, the former being identified as a party to the proceeding, albeit endowed with stronger powers than the defendant.
Acknowledgements
The author expresses his thanks to Raffaele Stolder and Lauren Keller for their support in the drafting of this article; any possible mistake or inaccuracy is exclusively his own.
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Camusso, A. (2016). Italy. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-27158-3_10
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