On February 27, 2020, the Italian Supreme Court fully upheld a judgment of the Milan Court of Appeals, which had dismissed the damages claim of Uno Communications S.p.A. (“UNO”) against Vodafone Italia S.p.A. (“Vodafone”).
In 2005, the ICA opened a proceedings against Telecom Italia Mobile S.p.A., Wind Telecomunicazioni S.p.A. and Vodafone for alleged abuse of dominant position in the market for fixed-to-mobile calls. The alleged abuse consisted in refusing to negotiate access to their mobile network with potential competitors willing to operate as MVNOs (Mobile Virtual Network Operators), ESPs (Enhanced Service Providers), or ATRs (Air Time Resellers). In May 2007, the ICA closed the proceedings with a commitment decision with respect to Vodafone. By contrast, in August 2007, the ICA fined both Telecom Italia Mobile S.p.A. and Wind Telecomunicazioni S.p.A.
In February 2012, UNO brought an action for damages against Vodafone, seeking compensation for the damages caused by alleged abuse of dominance and unfair competition acts, in connection with the facts investigated in the ICA’s proceedings. However, the Court of Milan ruled that UNO’s claim was time-barred, due to the expiry of the five-year limitation period.
The Milan Court of Appeals upheld the lower court’s judgment. In particular, the Court stated that: (i) UNO is “a professional operator in the market” and, as such, should have known the ICA’s proceedings into Vodafone’s conduct since its opening; (ii) Directive 2014/104/EU does not apply retroactively, therefore the limitation period started running when the damage became “objectively recognizable”, and it was not suspended pending the ICA’s proceedings. As a consequence, the limitation period started running in 2005, when the ICA opened the proceedings or, at the latest, in August 2007, when the ICA adopted a commitment decision with respect to Vodafone.
The Supreme Court analyzed the case based on the legal framework that was applicable before the entry into force of Legislative Decree No. 3/2017, implementing Directive 2014/104/EU.
In line with its precedents, pursuant to Articles 2935 and 2947 of the Italian Civil Code, the Supreme Court held that, in tort cases, the 5-year limitation period starts to run when “the damage is manifested externally” and becomes “objectively perceivable and recognizable, by using ordinary diligence”, by the person that suffered the damage.
The Supreme Court argued that it is reasonable to assume that consumers may discover the existence of a cartel only when the ICA publishes an infringement decision, thus publicly revealing an agreement that is typically secret. On the contrary, in exclusionary abuse of dominance cases, where claimants are usually competitors, market participants may become aware of the anticompetitive conduct even before the ICA publishes an infringement decision. In this scenario, the court has to carry out a case-by-case assessment aimed at evaluating the degree of competence and actual awareness of the person that suffered the alleged damage.
In the case at hand, the Supreme Court emphasized that UNO was a competitor of Vodafone, operating in the same sector, and should have known about the alleged anticompetitive conduct since 2005, when the ICA opened the proceedings (and there was consequent wide media coverage of it) or, at the latest, since August 2007, when the ICA adopted the commitment decision with respect to Vodafone.
In the Supreme Court’s view, in the case at hand the application of a 5-year limitation period starting from the day the ICA opened the proceedings did not infringe the EU principle of effective judicial protection, according to which national procedural law must not make it impossible or excessively difficult to enforce rights derived from EU law.
Moreover, the Supreme Court ruled on the evidentiary value of commitment decisions in follow-on cases. According to the Supreme Court, commitment decisions cannot have the same evidentiary value as infringement decisions (namely, they do not constitute “privileged evidence”, based on principles applicable ratione temporis). However, such commitment decisions cannot also have the same evidentiary value as decisions finding no infringement because they are usually adopted to remove the preliminary competition concerns raised by the ICA in the decision to open the proceedings. Moreover, in the specific case, the ICA accepted Vodafone’s commitments after having issued a statement of objections. In the Court’s view, this showed that, up to a very advanced stage in the proceedings, the ICA believed that Vodafone’s conduct was unlawful. Therefore, the Supreme Court held that, in these cases, commitment decisions may give rise to a rebuttable presumption of unlawfulness of the contested conduct.
Also in light of the judgment of the European Court of Justice in Gasorba v. Repsol, the Supreme Court concluded that “civil courts can base their decisions on what the ICA has established in the statement of objections, even though the ICA’s findings do not constitute privileged evidence and can always be rebutted by the parties.”
 Italian Supreme Court, Judgment No. 5381 of February 27, 2020; Court of Appeals, Judgment No. 3052 of July 20, 2016.
 ICA’s Decision No. 14045 of February 23, 2005.
 ICA’s Decision No. 16871 of May 24, 2007.
 ICA’s Decision No. 11731 of August 3, 2007, Case A357 – Tele 2/TIM-Vodafone-Wind.
 Judgment No. 4587 of April 3, 2014.
 Italian Supreme Court, Judgment Nos. 5913/2000; 9927/2000; 2645/2003; 12666/2003; 10493/2006; 576/2008; 27337/2008; 11119/2013; and 21255/2013.
 Judgment of November 23, 2017, Case C-547/16.