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

(iii) Calculation of Damages
Damages granted in antitrust actions are limited to plaintiff’s actual loss (i.e., “out of
pocket” loss plus loss of income). Punitive or exemplary damages are not available in the
Italian legal system. Plaintiffs can only claim damages that they actually and effectively
incurred. Where a precise amount cannot be determined, the Court may also calculate
damages to be granted on an equity basis. 590
Liquidation of damages based on loss of income is especially difficult to calculate
where the injured company could not even enter the market due to the incumbent operator’s
abusive conduct. In the Telsystem v. SIP,
591
162
the Court commissioned an expert report on
losses suffered by a potential first mover into the sector for leased-lines services, which
failed to enter this new market because of a dominant phone company’s refusal to grant
access to certain essential facilities. The damage liquidation was based, inter alia, on the
advantage that plaintiff would have had as first entrant into the sector for leased-lines
services. The Court, however, considered also that in a free market economy, monopolist
rent, such as that of a first mover, tends to be neutralized by competition within a certain
timeframe.
592
Similarly, in Albacom v. Telecom, the plaintiff claimed it could not enter the sector
for x-DSL/x-SDH services, one of several possible systems for the data transmission, where
the dominant phone company was already present as sole operator and denied access to
certain essential facilities at fair conditions. The Court multiplied plaintiffs’ market shares in
the general market for data transmission prior to beginning of the abuse by the value of the
market for x-DSL/x-SDH services during the whole period of the anticompetitive conduct. It
then assumed that the resulting amount corresponded to the turnover that the plaintiff would
have generated if it could have accessed the essential facilities needed for entering the
market. Hence, the Court awarded damages equal to 10 percent of this figure, assuming that
profits of an undertaking operating in the sector at stake were around the mentioned
percentage of turnover accrued.
593
In Bluvacanze v. Viaggi del Ventaglio and others, the plaintiff (a travel agency)
claimed damages incurred as a result of a boycott by several tour operators, which
590 Judgment of 28 June 2007, n. 2513, Naples Court of Appeal. Apart from damages, also restitution
has been granted in certain cases. For instance, in its judgment Avir v. Eni, 16 Sept. 2006, the Milan
Court of Appeal found that the incumbent gas operator abused its dominant position by imposing
price increases that did not bear a reasonable relation to the cost of gas. This conclusion was reached
comparing increase of Eni’s gas prices with the trend of gas quotations at the London Commodity
Exchange during the disputed period. The difference between the two growth rates was found to
constitute an (exploitative) abusive overcharge and the relative amount was awarded to the claimant
as restitution. The Court also decided that additional damages were to be quantified by a separate
judgment.
591 Telsystem v. SIP, 18 July 1995 and 24 Dec. 1996, Milan Court of Appeal.
592 Albacom v. Telecom, 20 Jan. 2003, n. 261, Rome Court of Appeal. See also Wind v. Telecom, 20
Jan. 2003, n. 262, Rome Court of Appeal; Cable & Wireless v. Telecom, 20 Jan. 2003, n. 266, Rome
Court of Appeal.
593 Bluvacanze v. Viaggi del Ventaglio and Others, 30 Apr. 2003, Milan Court of Appeal.