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

(v) Joint Liability
Under general civil liability principles, where damages are caused by more than one
undertaking, each is held jointly and severally liable to the claimant. The share of damages
for each defendant is to be determined in proportion to the seriousness of his fault and the
materiality of the effect of its conduct. Where such assessment is not possible, all defendants
are held liable for an equal amount of damages. The defendant who is required by claimant
to pay more than its share of damages can seek contribution from the other defendants or
can sue them for indemnification of its costs.
In principle, Italian law allows contribution and indemnity contract provisions
according to which a party undertakes to indemnify (totally or in partially) the other party
from possible damages liability arising from the agreement they have entered. However, if
the co-defendants are unable to show a legitimate interest as to why they agreed to such an
obligation, the indemnity provision may be held null for lack of contractual cause or as
contrary to public order.
(vi) Statutes of Limitation
The limitation periods for damages actions based on tort or breach of contract are five
and ten years, respectively. The Supreme Court has recently clarified that the limitation
period for antitrust damages actions starts running when the claimant is (or, using reasonable
care, should be) aware of both the damage and its unlawful nature (i.e., that the damage was
caused by an antitrust infringement). 597
(b) Actions for Nullity
In Liquigas v. Girelli, 598 the Italian Supreme Court stated that nullity of a horizontal
anticompetitive agreement pursuant to Section 2(3) of the Competition Law is not
automatically reflected on downstream contracts entered into by customers with members to
the upstream cartel and therefore maintain their validity. Some commentators and lower
courts’ judgments, however, still argue that nullity of an upstream cartel may affect also the
validity of downstream contracts, which may result to be (in part) null or void pursuant to
contract rules set forth in Italian Civil Code. 599
It is also worth mentioning that, in recent judgments, the Italian Supreme Court
recognized and stressed the strong links existing between an upstream cartel and
downstream agreements.
600
Accordingly, future trends may lead to apply nullity provided by
Section 2(3) of the Competition Law not only to upstream agreements but also to those
contracts by which the former are implemented.
597
SAI v. Nigriello, 2 Feb. 2007, n. 2305 (Cass.). See also Naples Court of Appeal of 12 July 2007.
598
Liquigas v. Girelli, 11 June 2003, n. 9384 (Cass.).
599
See, e.g., C.V. v. Soc. Milano Assicur., 12 Sept. 2003, Giudice di Pace of S. Anastasia.
600
Unipol v. R.M., 4 Feb. 2005, n. 2207 (Cass.), SAI v. Nigriello, 2 Feb. 2007, n. 2305 (Cass.).
164