Corte di Cassazione, I Sezione Civile
National case details
Registration ID: n. 11564
Instance: Cassation (review)
Case status: Final
Area of law
Safeguards for access to justice
Relevant principles applied
In judicial dialogueJudgement of the CJEU 10 August 2017, Case C-282/95
Articles 101 and 102 of the TFEU
26 November 2014
Directive n. 104/2014
04 June 2015
Decision n. 11564/2015 of the Italian Court of Cassation
19 January 2017
Legislative Decree n. 3/2017
Identification of the case
- Law n. 287/1990, Italian Competition Law (“Norme per la tutela della concorrenza e del mercato”), Article 3 on abuse of dominant position within a relevant market
- TFEU, artt. 101 and 102
- Regulation n. 1/2003
- Directive n. 104/2014
Summary of the case
A series of undertakings engaged in the wholesale trade of fruit and vegetables taking place at a trade center, sued a company, which managed the center according to an exclusivity clause with its owner. The plaintiffs argued that the managing company had imposed them the conclusion of unfavorable lease contracts with regard to individual stores and selling areas. From the plaintiffs’ perspective, the managing company operated in a relevant market according to EU parameters and abused its dominant position. The plaintiffs, thus, asked for the annulment of every contractual clause and attached regulation allegedly abusive, on the basis of Article 3 of Law n. 287/1990, which prohibits the abuse of dominant position. The Court of Appeal, heard in first instance according to the then in force version of Article 33 of Law n. 287/1990, rejected the plaintiffs’ requests. It motivated its decision by stating that there was not a relevant market with regard to the lease contracts concluded by the plaintiffs; on account of the lack of information provided by the plaintiffs, moreover, it was impossible to compare contractual clauses adopted in different trade centers. Thus, the alleged abuse could not be sustained. The plaintiffs challenged the decision before the Court of Cassation, which sustained their claims and annulled the decision.
- Civil judicial enforcement
Annulment of contracts concluded with an undertaking exercising an abuse of its dominant position.
The Court annulled the decision of the Court of Appeal, which rejected the request of the plaintiff for the annulment of a series of lease contracts concluded with an undertaking in a dominant position.
The decision challenged before the Court had rejected the plaintiffs requests, stating that they had not provided adequate proof with regard to the relevance of the market they operated in, according to the definition included in Article 3 of Law n. 287/1990.
The Court of Cassation, firstly, points out that the general concepts of “relevant market” and “abuse of dominant position” must be contextualized depending on the circumstances of the actual case adjudicated. Then, it highlights how the Court of Appeal neglected to do such a contextualization, refusing to consider the plaintiffs as operating in a relevant market but not offering sufficient reasoning for the decision.
In second place, the Court analyzes the issue regarding the burden of proof. The Court of Appeal declared that the plaintiffs had not fulfilled their burden with regard to the evidence of the existence of a relevant market. The Court of Cassation, nevertheless, considers that the proceedings does not follow a decision of the NCA. It is, in other words, a stand alone proceedings, where a group of undertakings seek compensation, before a civil court, following an alleged antitrust infringement without any administrative decision of the NCA assessing it. In these kind of proceedings, the Court states, those who claim to have been damaged by an infringements experience particular difficulty when fulfilling their burden of proof. Proving the existence of a relevant market requires indeed a series of economic data and information which, more often than note, are at the disposal of the defendant (the undertaking allegedly violating antitrust regulation) rather than the plaintiff. Moreover, whereas in the public enforcement proceedings the NCA retains consistent investigation powers which it can activate on its own, in the private enforcement ones these powers are much more limited.
The issue, as identified by the Court, is in the relationship between the rules concerning the burden of proof and the discipline of antitrust enforcement as laid out by the EU Law. In first place, the Court points out that Article 101 and 102 of the TFEU have direct effects on private subjects, who are addressees of rights that national judges have to protect. The Directive n. 104/2014 traces a clear path, striving toward a collaborative environment between the European legal framework and the national rules regarding private antitrust enforcement. The Court then refers to Article 4 of the directive, which stresses the principle of effectiveness of judicial protection in private antitrust proceedings, and to Article 47 of the CFREU. In the Court’s reasoning, these rules design a legal framework which empowers the judge to dispose of adequate procedural instruments to protect the position of a party which finds itself in an “asymmetrical information context” where relevant proofs are at the disposal of the other party, that allegedly perpetrated the infringement. Instruments such as a technical consultancy, or a judge order to product documents before the Court, can serve this purpose, thus achieving a full application of the principle of effectiveness.
Role of the Charter and role of the general principles on enforcement
The decision makes an explicit reference to Article 47 of the Charter, which declares the right to an effective judicial remedy.
The Court considers that, in a concrete situation characterized by an asymmetry of information at the disposal of the litigating parties, a strict application of the general principle concerning the burden of proof (onus probandi incumbit ei qui dicit , that is duty of a party to prove its own allegations) could render practically impossible or excessively difficult for a party to offer evidence of an antitrust infringement. The outcome would be a violation of Article 47 of the Charter. Thus, the Court states that the judge has to make use of the appropriate procedural rules and instruments in order to guarantee that the information asymmetry does not hinder the right to an effective remedy.
- Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
- Right to a fair trial
The Court, in the decision, applies Article 47 of the Charter in combination with Articles 101 and 102 of the TFEU and Article 4 of the Directive n. 104/2014. The Court regards Article 47 as one of the pillars building the legal framework of private antitrust enforcement in EU law. The concept of effectiveness of the judicial protection is emphasized by the Court, in order to assess which procedural instruments the judge can trigger when one of the parties in a private antitrust proceeding (and especially in a stand alone proceeding) cannot offer enough evidence of its allegation due to an asymmetry of information with the other party.
Article 47, thus, serves both as a theoretical reference point and as a concrete legal basis for the decision.
The Legislative Decree n. 3/2017 (transposing Directive n. 104/2014) now regulates (Article 3) the powers of the judge to order the exhibition of evidence to a party in civil antitrust proceedings. The new set of rules establishes a discipline in accordance with the principle of effectiveness of the judicial remedy as laid out in Article 47.
The whole reasoning of the Court revolves around the concrete application of the principle of effectiveness as laid out in the European legal system and, particularly, in Article 4 of Directive n. 104/2014 and in Article 47 of the CFREU.
The decision challenged before the Court had adopted a narrow interpretation of the principle of the burden of proof, as contained in an Article of the Italian civil code (Article 2697). The principle states that it is the duty of the party to prove its own allegations.
When discussing this rule, the Court of Cassation, nevertheless, considers the complex European legal framework which inspires and regulates private antitrust proceedings all over the Union. In particular, the Court focuses on Article 4 of Directive n. 104/2014, which states that “Members States shall ensure that all national rules and procedures relating to the exercise of claims for damages are designed and applied in such a way that they do not render practically impossible of excessively difficult the exercise of the Union right to full compensation (…)”. In light of this discipline, a narrow interpretation of the burden of proof principle would hinder the effectiveness of the judicial remedy offered to the private party, since, in most cases, this party is unable to offer sufficient evidence of its allegations.
The Court implicitly stresses that, when dealing with matter and areas covered by the Union law, the interpretation of substantial and procedural rules has to be in accordance with the principles laid out at the European level. Thus, the principle of effectiveness inspires and guides the judge when interpreting and applying national rules in an antitrust proceeding.
The relevance of the principles of effectiveness is even more important in the case analysed, since it concerned a stand alone proceeding. The plaintiff, in such proceedings, cannot refer to a previous NCA decision to uphold its arguments and allegations; thus, the effectiveness of the judicial protection offered is the only criterion which the judge can rely on to ensure his/her access to all the useful information in order to reach a decision.
The Legislative Decree n. 3/2017 (transposing Directive n. 104/2014) intervened on the matter in order to set clear rules in accordance with the European discipline. In particular, Article 3 of the Decree regulates the judicial order to show/produce documents or other evidence which could reasonably uphold the allegations of the party seeking compensation but are presumably at the disposal of the party who allegedly committed the infringement.
Elements of judicial dialogue
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- Dialogue between high court - lower instance court at national level
- CJEU C-282/95, Guerin
Conform interpretation with EU law as interpreted by the CJEU.
The purpose of the dialogue between the Court of Cassation and the Court of Appeal, and between the Court of Cassation and the CJEU, was to uphold an interpretation of national procedural rules in harmony with the principle of effectiveness.
Additional notes on the decision
Article 3 of the Legislative Decree n. 3/2017 (transposing Directive n. 104/2014) upholds some of the conclusions reached by the Court in the case analysed and seeks to establish a clear set of rules regarding the powers of the judge to order a party to exhibit evidence which could sustain the arguments of the other party seeking compensation.