The new platform
In March 2023, the Italian Competition Authority (“ICA”) announced the publication of a new whistleblowing platform, which is available on its website at the following link: https://www.agcm.it/servizi/whistleblowing.
Following the “best practices” initiative of the European Commission (DG COMP) and several National Competition Authorities, the ICA is aiming to encourage the anonymous reporting of anti-competitive behaviour with the introduction of the platform.
The main innovative feature of the new platform is that it ensures all communication can be reported in an anonymous way, thanks to an encrypted system. The whistleblower may thusengage in direct communication with the ICA, without having to reveal his/her identity.
The ICA’s objective is to encourage all subjects who have access to confidential information to flag – without having to reveal their identity – any antitrust violation that they are aware of, including abusive behavior and any secret anti-competitive agreements by which two or more companies undertake to fix prices, boycott competitors or share markets. The new platform should thus help the ICA to ease the use of its investigative powers and to strengthen its fight against cartels, which are usually the most difficult anticompetitive behaviour to uncover. This is often because of the reluctance of informed subjects to cooperate with antitrust authorities given their very close links to the involved undertakings.
How to report anticompetitive behaviour
Whistleblowers can report all anticompetitive behaviour they are aware of by filling-in the following form: wbagcm – Home (integrityline.com).
Relevant information which may be reported include a description of:
- the collusive or abusive behaviour;
- the factual circumstances in which said behaviour has taken place;
- the products and services impacted by the anticompetitive behaviour;
- the undertakings involved;
- the damages caused by the behaviour and subjects suffering said damages.
The right to anonymity is ensured thanks to a third-partyplatform provider, which will send an “alert” to the competent ICA office each time a report is sent through the platform. If the whistleblower accepts a two-way communication with the ICA, he/she will be given a passcode by which he/she can access any further request for information from the ICA.
Responses to such requests will be sent directly to the ICA competent office through the encrypted system of the platform, again without providing any information allowing the identification of the whistleblower.
The new whistleblowing platform will apply without prejudice to the possibility for undertakings involved in a cartel to apply for a leniency programme that, under certain conditions, makes it possible to avoid or significantly reduce the size of the applicable fine.
A new tool to improve antitrust enforcement?
The new whistleblowing platform is in line with the ICA strategic objectives for the period 2023-2025: namely, to improve the quality of antitrust enforcement by focusing on cases that have the greatest anti-competitive impact on the economy.
This initiative is thus focused on the cooperation of the undertakings involved as a procedural efficiency instrument – in similarity to the so-called “settlement procedure” (where involved undertakings have to admit to their participation in the anticompetitive behaviour) – with a view to align the ICA’s enforcement powers with those of the European Commission by enhancing the incisiveness and efficiency of antitrust enforcement, and also to comply with a general principle of procedural economy.
For further information, please contact:
Federico Marini Balestra, Partner, Bird & Bird
federico.marinibalestra@twobirds.com
