Competition Law in Italy The first 20 years of law and practice

(a) Actions for Damages
(i) Ground and Standing
Damages in tort for breach of Italian (or EU) antitrust provisions may be claimed by
victims of anticompetitive conduct pursuant to Article 2043 of the Italian Civil Code,
according to which “any act committed with either intent or fault causing an unjustified
injury to another person obliges the person who has committed the act to compensate the
damages.”
In Unipol v. Ricciardelli, 582 the Italian Supreme Court (sitting en banc) clarified that
consumers also have standing to bring damages actions in tort for breach of the Competition
Law. In this case a policyholder sued his insurance company before a lower court asking for
the refund of part of the insurance premium he had paid, arguing that the latter had been
increased as a result of an upstream cartel previously ascertained by the Competition
Authority to which its insurance company had been part. The lower Court upheld the claim
but the insurance company appealed the judgment before the Italian Supreme Court arguing,
inter alia, that consumers did not have standing to bring damages actions based on
infringement of Italian antitrust provisions. The Italian Supreme Court dismissed the appeal
on this point, clarifying that the objective of Italian antitrust rules is to ensure, in common
and public interest, that competition in the national market is not restricted. Anyone,
including consumers alleging prejudice resulting from reduced competition, should thus be
entitled to claim damages in tort from undertakings that have breached the Competition
Law. 583 That being said, the Italian Supreme Court clarified that, pursuant to Section 33(2)
of the Competition Law, Courts of Appeals have exclusive jurisdiction with reference to
damages actions for breach of the Competition Law. Therefore, it concluded that the
policyholder had wrongly sued his insurance company before a lower Court. Unipol v.
Ricciardelli, therefore, stands as a very important precedent that reversed AXA v. ISVAP and
Camillo, 584 a previous judgment of the Italian Supreme Court holding that consumers have
no standing to bring damages actions in tort based on the infringement of the Competition
Law since the latter is intended to protect only undertakings and not consumers. 585
However, conduct amounting to an antitrust infringement may also give rise to damages
actions based on contract liability. For instance, a company that is part of a horizontal price
Competition Authority establishing the infringement of Italian merger control rules) would still be
possible.
582 Unipol v. Ricciardelli, 4 Feb. 2005, n. 2207 (Cass).
583 The right of consumers to bring damages actions in tort for breach of Italian antitrust provisions was
then confirmed by the Italian Supreme Court in SAI v. Nigriello, 2 Feb. 2007, n. 2305 (Cass).
584 AXA v. ISVAP and Camillo, 9 Dec. 2002, n. 17475 (Cass).
585 For a recent case in which tort damages were awarded to consumers who paid higher premiums for
their third-party liability insurance as a result of an upstream cartel among insurance companies, see
Nigriello v. SAI, 3 May 2005, Naples Court of Appeal.
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