On April 3, 2020, the Italian Supreme Court upheld the Milan Court of Appeal’s judgment that had dismissed the follow-on damages claim brought by Uno Communications S.p.A. (“Uno”) against Telecom Italia S.p.A. and TIM Italia S.p.A. (“Telecom”), concerning the conduct investigated and fined by the ICA in Case A537.[1]
The Supreme Court’s judgment confirms the principles set out in its ruling of February 2020,[2] which had rejected Uno’s damages claim against Vodafone Italia S.p.A., in connection with similar facts.[3]
In line with the rulings of the Court of Milan and the Milan Court of Appeal,[4] the Supreme Court rejected Uno’s damages claim on the grounds that the five-year limitation period had expired.
The case did not fall ratione temporis within the scope of application of the rules introduced by Law Decree No. 3/2017, implementing Directive 2014/104/EU.[5] In light of established principles under the previous regime, the Supreme Court held that the five-year limitation period starts to run when the contested conduct, the damage and the causal link are manifested externally, thus becoming objectively perceivable and recognizable, by using ordinary diligence, by the person that suffered the damage.
In line with the parallel ruling issued in February, the Supreme Court noted that, in case of cartels, consumers may normally discover the existence of anticompetitive conduct only when the ICA publishes an infringement decision, thereby publicly revealing an agreement that is typically secret. On the contrary, in cases of exclusionary abuses harming competitors, market players may become aware of abusive conduct even before the ICA’s infringement decision is published. In practice, the actual awareness of an alleged infringement by possible victims must be assessed on a case-by-case basis. In the case at hand, since Uno was a “professional operator”, competed with Telecom in the same market and, therefore, presumably was aware of the alleged anticompetitive abuse even before the ICA started proceedings, the Supreme Court declared that the five-year limitation period started to run from the day on which the ICA started its investigation.
The Supreme Court also added that a five-year limitation period running from the day on which the ICA started an investigation does not infringe the right to effective judicial protection under EU law, as it does not make excessively difficult to exercise the right to compensation for damages caused by anticompetitive conduct.
[1] Italian Supreme Court, Judgment No. 7677 of April 3, 2020. ICA, Decision of August 3, 2007, No. 17131, Case A537 – Tele 2/TIM-Vodafone-Wind.
[2] Italian Supreme Court, Judgment No. 5381 of February 27, 2020.
[3] ICA, Decision of August 3, 2007, No. 17131, Case A537 – Tele 2/TIM-Vodafone-Wind.
[4] Court of Milan, Judgment No. 5049 of April 15, 2014; Milan Court of Appeal, Judgment No. 2179 of May 31, 2016.
[5] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, in OJ [2014] L 349/1.