Damages due to unfair competition
by Fulvio Sarzana of S.Ippolito, Lawyer
Damage resulting from unfair competition must be understood as permanent, but must in any case be contested at the time the event occurred.
This is what the Supreme Court of Cassation ruled in a proceeding between a medium-sized telecommunications operator and the telephone operators TELECOM, WIND, and VODAFONE, regarding a provision by the Italian Competition Authority.
The operator argued that the damage caused by the anti-competitive conduct established by the Antitrust Authority continued over time, beyond the AGCM's decision, and that therefore the five-year limitation period began several years after the Antitrust Authority's decision.
The Court of Cassation ruled against the operator, noting that: "It must be clarified, first of all, that in this case the question arises first of all as to whether Directive no. 2014/114/EU is operational or not (followed by 1.114/2015, delegating the Government for its implementation, and Legislative Decree 3/2017, which came into force on 3/2/2017, implementing it), containing, in CHAPTER III, provisions aimed at harmonizing the rules on the statute of limitations in actions for compensation for damages arising from the violation of antitrust legislation, with a view to ensuring the effectiveness of compensatory protection in this area (Recital 4, paragraph 1), provisions that have resolved many issues on the subject, subject to different solutions by the national judges of the Member States. Indeed, in antitrust infringement, the damages caused by anticompetitive conduct present, with regard to the identification of the moment from which the The statute of limitations begins to run, a possible time interval between the time the unlawful conduct is committed and the time when the injured party perceives that they have suffered unjustified harm as a result, either due to the secret nature of the antitrust agreements or due to the objective complexity of the perception of the abuse of a dominant position, especially in pricing matters. In this regard, we speak of a "long latency" period for damages resulting from antitrust infringement.
by Fulvio Sarzana di S.Ippolito, Lawyer
www.lidis.it
In particular, Recital 36 of the 2014 Directive states that: "National rules on the commencement, duration, suspension, or interruption of limitation periods should not excessively impede the bringing of actions for damages. This is particularly important for actions based on a finding of an infringement by a competition authority or a review court. To that end, it should be possible to bring an action for damages following proceedings conducted by a competition authority for the purposes of enforcing national and Union competition law. The limitation period should not start to run before the infringement has ceased and before a claimant knows, or can reasonably be presumed to know, the conduct constituting the infringement, the fact that the infringement has caused him or her damage, and the identity of the infringer. Member States should be able to maintain or introduce generally applicable absolute limitation periods, provided that the length of such absolute limitation periods does not make it practically impossible or excessively difficult to exercise the right to full compensation.
Damages due to unfair competition
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