On 22 May 2023, the Italian Competition Authority (“ICA”) published a communication (the “Communication”) to define the procedural application of Article 14-quater of the Italian Competition law (“Law n. 287/1990”) governing the so-called “settlement procedure”, which has been introduced by the 2021 annual competition law.
As a result of the Communication, settlement procedures are now officially part of the framework of all antitrust proceedings initiated by the ICA. The Italian legislator has thus notably extended the scope of application of antitrust settlement procedures – usually applied by the Commission in cartel proceedings – to investigations of abuses of a dominant position under Article 102 TFEU.
The aim of the settlement procedure is to reach an agreed definition of the content and scope of the charges between the ICA and the involved parties. The procedure does not constitute a negotiation – driven by the ICA – of either the existence of the infringement or of the amount of the applicable fine.
Settlement discussions in front of the ICA
During the investigation phase, and particularly once the procedural term within which the parties can submit commitments is expired pursuant to Article 14-ter of Law n. 287/1990, the ICA can assess the likelihood of reaching a speedy settlement of the proceeding by successfully completing the settlement procedure with respect to all the parties involved, also considering their number. If such assessment turns out to be positive, the ICA invites the parties to give consent to participate in the settlement procedure with a 15-day period of prior notice.
Starting from the moment when the ICA sends out the invite to participate to the settlement procedure, it is no longer possible to claim the benefit of the non-application of fines pursuant to Article 15-bis of Law n. 287/1990. The reason behind this is that the initiation of the settlement procedure postulates the suitability of the evidence collected by the ICA to prove the antitrust infringement. It is however left open the possibility, where the specific requirements are met, to request the benefit of the reduction of sanctions pursuant to Article 15-ter of Law n. 287/1990 within the term established by the ICA when inviting the parties to participate in the settlement.
In the same vein, the ICA will not examine any commitment presented by the parties who have received an invite to participate in a settlement procedure.
If the ICA considers that the settlement discussions may lead to a consensus on the scope of potential objections and the range of probable fines, it sets a deadline – of no less than 15 days – for companies to submit a settlement proposal.
The settlement proposal
The parties who want to “settle” the proceedings are obliged to present a settlement proposal, which must comply with the following minimum content requirements:
- an acknowledgement in clear and unequivocal terms of the parties’ responsibility for the infringement;
- an indication of the maximum amount of the fine that the parties expect and which they would accept within the framework of a settlement procedure;
- confirmation by the parties that they have been sufficiently informed of the objections raised against them by the ICA and that they have been given sufficient opportunity to express their views to the ICA;
- a waiver of the parties’ right to request access to the file of the proceeding, to submit pleadings and to request a hearing.
Once submitted, the settlement proposal cannot be revoked by the parties.
Settlement outcome and ICA decision
After having received the settlement proposal, the ICA adopts its communication of preliminary findings (so-called “CRI” in Italian). If the latter reflects the content of the settlement proposal, then the parties simply confirm in writing such correspondence between their proposal and the preliminary disclosure and that they therefore remain committed to the settlement procedure. The ICA can then adopt its final decision and the proceeding will be closed without further procedural steps.
In the event of such a positive outcome of the settlement proceeding, the ICA can reduce the fine of 20% (for all antitrust proceeding) and of 10% (for secret cartels), without prejudice to the further fine reductions envisaged under the “clemency program”. The final version of the ICA Communication has thus increased the reduction of the fine (initially set at 10% for all proceedings) in order to make the settlement procedure more attractive for companies.
Notwithstanding the settlement proposal, the ICA remains in any case free to adopt a communication of preliminary findings or a final decision that do not reflect the content of the settlement proposal presented by the parties. In such event, the usual procedural rules will apply, the admissions made by the parties in their settlement proposal shall be deemed withdrawn and may not be used as evidence against any of the parties in the proceeding, in compliance with their procedural rights of defence.
The Communication is available (in Italian only) at the following link.
For more information, please contact Federico Marini Balestra, Lucia Antonazzi and Chiara Horgan.
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For further information, please contact:
Federico Marini Balestra, Partner, Bird & Bird
federico.marinibalestra@twobirds.com
