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

Clauses of an agreement that constitute and amount to an abuse of dominant position
may also be found null. In Avir v. Eni, 601
the Milan Court of Appeals found that price
clauses contained in gas supply agreements, through which the incumbent gas operator had
abused its dominant position by imposing an excessive purchase price (so-called exploitative
abuse), were null because they violated Section 3(a) of the Competition Law.
Pursuant to Article 1422 of the Italian Civil Code, declaration of nullity is not subject to
statutes of limitation.
(c) Actions for Injunctive Relief
Actions for injunctive relief can have different purposes. For instance, the plaintiff can
request the Court to order a dominant company to grant access to certain essential facilities
or a cartel member to stop colluding with competitors. Injunctions can be granted either as a
final award or as an interim measure.
Pursuant to Articles 700 et seq. of the Italian Civil Procedure Code, an interim measure
may be requested if a plaintiff reasonably fears that its rights are likely to be irreparably
damaged during the time that is necessary for reaching an ordinary proceeding decision or
judgment. In certain cases a defendant has been ordered to enter into a supply agreement 602
or to cease and desist from continuing its unlawful behavior 603
until an ordinary proceeding
decision or judgment can be reached.
2. Contingency Fees
Pursuant to new rules passed in 2006, outcome-based fee arrangements are now
permitted, arguably including “no win, no fee” arrangements. 604
These types of
arrangements are to be stipulated in written form and consistent with the principle of
proportionality.
3. Class Action
The Italian Parliament has recently introduced in the Italian legal system a class action
system that, to a certain extent, appears to be similar to those of certain Common Law
countries. 605
In particular, Article 140 bis of the Italian Consumer Code provides that, in case of
anticompetitive conducts affecting a number of consumers or users, any of them has
601
Avir v. Eni, 16 Sept. 2006, Milan Court of Appeal.
602
Judgment of 29 Apr. 1995, Milan Court of Appeal; Judgment of 12 Feb. 1995, Rome Court of
Appeal.
603
Judgments of 13 July 1998, Milan Court of Appeal and 29 Sept. 1999, Milan Court of Appeal.
604
Decree Law No. 223 of 4 July 2006, then converted into Law No. 248 of 4 Aug. 2006.
605
See Section 140 bis of Legislative Decree No. 206/2005 [hereinafter Italian Consumer Code], as
recently amended. This new class action is applicable only with respect to infringements committed
after August 15, 2009.
165