On January 4, 2022,[1] the Supreme Court of Cassation fully upheld a judgment of the Milan Court of Appeals,[2] which had dismissed the damage action brought by Fastweb S.p.A. (“Fastweb”) against Vodafone Italia S.p.A. (“Vodafone”).

In February 2005 the ICA opened an investigation into the allegedly abusive conduct of Telecom Italia Mobile S.p.A. (“TIM”), Wind Telecomunicazioni S.p.A. (“Wind”) and Vodafone in the market for fixed-to-mobile calls.[3] The alleged violation of Article 102 TFEU concerned the parties’ refusal to negotiate access to their respective mobile networks 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 decision to accept the commitments offered by Vodafone and make them binding on that company.[4] In contrast, in August 2007 the ICA closed its investigation by declaring TIM’s and Wind’s conduct unlawful and imposing fines on the two companies.[5]

In December 2010, Fastweb brought an action against Vodafone before the Court of Milan, seeking compensation for the damages suffered as a result of the defendant’s alleged abuse of dominance and unfair competition, in connection with the facts investigated into by the ICA. However, the Court ruled that Fastweb’s claim was time-barred, due to the expiry of the five-year limitation period.[6] The Milan Court of Appeals later upheld the lower court’s judgment.

In line with its case law, the Court of Cassation held that, for antitrust damage actions based on tort, including follow-on actions, the five-year limitation period starts running from the date when: (i) the infringement of competition law has ceased; and (ii) the claimant is – or, using reasonable care, should be – aware (a) of the behavior and the fact that it constitutes an infringement of competition law, (b) of the fact that the infringement of competition law caused harm to the claimant, and (c) of the identity of the infringer.

Moreover, the Court of Cassation reasoned that, in those cases where the claimants are undertakings rather than consumers, the starting date for calculating the limitation period is generally considered the date of the publication of the decision launching the investigation, rather than the date of the publication of the decision to close it. The court having jurisdiction then has to carry out a case-by-case assessment aimed at evaluating the degree of actual awareness of the injured party. In the case under review, the Court upheld the lower courts’ rulings under which, since Fastweb was a competitor of Vodafone, it should have known about the alleged anticompetitive conduct since 2005, when the ICA launched its investigation.

[1]      Italian Supreme Court, Judgment No. 112 of January 4, 2022.

[2]      Milan Court of Appeals, Judgment No. 887 of March 1, 2017.

[3]      Decision No. 14045 of February 23, 2005.

[4]      Decision No. 16871 of May 24, 2007

[5]      Decision No. 11731 of August 3, 2007, Case A357 – Tele 2/TIM-Vodafone-Wind.

[6]      Court of Milan, Judgment of October 15, 2014, No. 12043.