On January 4, 2021, the Tribunale di Milano (the “Court of Milan”) rejected a request for an expert’s preliminary assessment of damages in a civil action brought by 7 Pixel s.r.l. (“7 Pixel”) against Google LLC (“Google”, together with 7 Pixel, the “Parties”).[1] The Court of Milan rejected Pixel’s attempt to use a swift settlement-like procedure on the basis of Article 696-bis of the Italian Code of Civil Procedure, which allows the judge to order an expert’s report providing an upfront assessment of the damages.

7 Pixel’s claim was brought as a follow-on action to the decision of the European Commission (the “Commission”) in the Google Search (Shopping) case (the “Decision”).[2]

The Decision

On June 27, 2017, after almost seven years of investigation, the Commission fined Google a record-breaking €2.42 billion for an alleged abusing its dominance in violation of Article 102 TFEU since May 2011 through June 2017. In particular, the Commission found that Google leveraged its dominance in the market for general internet search into the market for comparison shopping services (“CSSs”)[3] by favoring its own shopping comparison service, Google Shopping, in general search results, to the detriment of third- party comparison shopping services. In particular, it found that Google systematically positioned and displayed its CSSs at or near the top of its general search results, with a view to promoting its own CSSs in Google Search results, whilst demoting those of rivals.

According to the Commission, because Google’s competitors in the CSS market are subject to its generic search algorithms, Google’s conduct may potentially foreclose CSSs and may lead to anticompetitive effects by enabling Google to raise prices and diminish innovation[4].

The proceeding started by 7 Pixel

  • Background and Parties’ arguments
    • Under the Damages Directive,[5] as implemented into the Italian legal system in 2017,[6] any individual who has suffered harm caused by an infringement of competition law can effectively exercise the right to claim full compensation for that The Directive includes both substantial and procedural provisions and offers a comprehensive legal framework for actions commenced by anyone damaged by an infringement of competition law.
    • 7 Pixel is active in the Italian market for online CSSs through several websites. Considering itself to be an injured party as a result of Google’s conduct alleged in the Decision, 7 Pixel brought an action for damages before the Court of Milan, claiming compensation for the harm allegedly suffered. The claimant estimated its damages to amount to between €811 and €906
    • However, 7 Pixel did not request the Court of Milan to carry out a substantive assessment of the alleged anticompetitive conduct. It claimed that the Commission in the Google Search (Shopping) case had already established the existence of the infringement of competition law as well as the causation link between the alleged harm to CSS providers and Google’s unlawful conduct. As a result, 7 Pixel argued that the only requirement left to be established by the Court of Milan was the amount of damage actually suffered.
    • On these grounds, 7 Pixel asked the Court of Milan – pursuant to Article 696-bis of the Italian Code of Civil Procedure – to appoint an expert who would carry out a preliminary assessment of the damages incurred by the claimant due to Google’s abusive
    • The rationale for requesting this early quantification was to increase the chances of reaching a successful out-of-court settlement with Google, thereby avoiding a lengthier
    • Google, however, countered that 7 Pixel’s action was inadmissible and unfounded. It argued that:

in the Decision the Commission did not establish the existence of a causal link between Google’s conduct and the alleged damage suffered by 7 Pixel or any other undertaking. The Commission only found that Google’s conduct could “theoretically and potentially be susceptible” to causing harm;

in any event, 7 Pixel’s revenues generated through the Google Search browser had increased from €89 million to €143 million during the six-year period considered in the Decision;

Google’s action for annulment of the Decision is pending before the General Court. Therefore, the anticompetitive character of Google’s behavior, the occurrence of the damage and the causal link between the infringement and the damage have not been definitively established;

finally, 7 Pixel, despite characterizing its claim as a follow-on action to the Decision, alleged it would suffer damages until 2023, i.e., well beyond the timeframe that was considered in the Decision, therefore departing from the Commission’s findings.

The Court of Milan’s decision

  • By reference to its recent case-law,[7] the Court of Milan stated that a preliminary assessment by a technical expert pursuant to Article 696-bis of the Italian Code of Civil Procedure may be considered admissible only when the case does not require the prior resolution of complex legal issues or the appreciation of facts that are outside the scope of the court’s technical Once the expert’s assessment has been provided, the parties should be able to reach a settlement without other issues remaining unresolved or controversial.
  • The Court of Milan found that these conditions were not met in the case at In particular:

the Commission’s Decision was not final and the required elements for damage claims had not been ascertained yet. Therefore, its decision on the case would still require an in-depth and complex analysis in relation to the existence of the infringement, the occurrence of damages, and the causation link;

  • in addition, the Court of Milan referred to Article 16(1) of Regulation 1/2003, pursuant to which national courts, where they rule on anticompetitive conduct under Article 101 or 102 TFEU that is already the subject of a Commission decision, cannot take decisions running counter to the decision already adopted by the Commission, and must avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated, as A national court may therefore opt to stay proceedings brought in reliance on a Commission decision where that decision is subject to judicial review proceedings before the EU courts, so as not to reach a judgment that is irreconcilable with the outcome of those proceedings. The Court of Milan referred to a judgment by the Italian Supreme Court of Cassation according to which a national court, in deciding whether or not to suspend the proceedings pending before it, must be particularly cautious, so as to avoid even the mere possibility that its decision might interfere with that to be taken by the EU courts, thus rendering such decision contrary to EU law.[8]
  • The Court of Milan – while envisaging the possibility of staying the proceedings– also stressed that the non-final nature of the Decision and the pleas that Google raised in its action for annulment before the General Court directly impinged on the potential finding of liability for antitrust harm as well as on the causation Since such complex questions can only be adequately ascertained in an adversarial proceeding on the merits of the case, the Court held that7 Pixel’s request for a preliminary assessment of the damages to be carried out by an expert, far from facilitating a settlement between the Parties, would only make the matter more complex;
  • the Court added that the Commission’s Decision, which is not final, cannot be relied on to establish the occurrence of damages and the liability for anticompetitive conduct that took place after the timeframe considered in the Indeed, the Court found that the case before it should be characterized as a stand-alone action (as opposed to a follow-on one) and, therefore, 7 Pixel should discharge the evidential burden with regard to, at least, the existence of the unlawful conduct and its consequences in terms of damages.

In light of all the above considerations, the Court of Milan rejected 7 Pixel’s request as inadmissible.

[1]      Court of Milan, Order of January 4, 2021, Case No. 59172/2019, 7 Pixel/Google.

[2]      Commission decision of June 27, 2017, Case COMP/AT.39740 Google Search (Shopping).

[3]      CSSs are online search services that allow users to search for products and compare their prices and characteristics across offers from different merchants. In the Decision the Commission concluded that CSSs constitute a distinct product market that excludes merchant platforms (e.g., Amazon and eBay).

[4]      On September 11, 2017, Google filed with the General Court of the European Union (the “General Court”) an application for annulment of the Decision (OJ 2017, C 369/51).

[5]      Directive 2014/104/EU of the European Parliament and of the Council of November 26, 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.

[6]      Legislative Decree No. 3 of January 19, 2017.

[7]      Court of Milan, order of May 10, 2019.

[8]      Italian Supreme Court of Cassation, Order No. 10880, May 25, 2016.