Private Enforcement in Italy

Abstract

Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of theEuropeanUnion has been transposed in Italy by means of LegislativeDecree no. 3 of 2017, whichlargely reproduces the Directive not only with regard to the structure but also in respect of the wording of the provisions. As with ot her Member States, for example France,Italian lawmakers opted to enact a lex specialis for antitrust damages actions and limited the implementation to what was necessary, without any amendment to the codes of Italy, neither to the Code of Civil Procedure nor to the Civil Code, the latter of which contains the general rules of tort law. Although pragmatic at a first glance, such a choice makes the interplay between general rules and principles, on the one hand, and the ‘special regime’ for antitrust damages actions, on the other, somehow harsh. Moreover, from a systematic point of view, that interplay could even turn into a clash where the new set of rules, while having a relevant incidence on the private law remedy concerned (i.e., civil liability), fails to fully overlap with it. This will undermine the interpretative argument ‘ruleexception’ and potentially convert what was meant to be a form of a practical solution into an increasing theoretical problem.