Italy, Court of Cassation, 6th Civil Section, 23 April 2014 n. 9116

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Article 24 of the Italian Constitution
• Article 33 of Law n. 287/1990 (Italian Competition Law, “Norme per la tutela della concorrenza e del mercato”)

• Articles 101 and 102 of TFEU

Summary of the case

The case concerns a request for compensation, filed by a consumer affected by an unlawful cartel between several insurance companies. The plaintiff sued his insurance company (Lloyd Adriatico S.p.a.) after the National Competition Authority, with the decision of the 28th of July, 2000, fined a series of insurance companies on account of their participation in an anticompetitive agreement. The plaintiff asked for compensation with regard to the premiums paid to the insurance company between 1995 and 2000, claiming that the increase in the prices of said premiums was attributable to the unlawful agreement fined by the NCA.

The Court of Appeal of Naples rejected the requests of the plaintiff with the decision of the 4th of March, 2011.

The decision was subsequently challenged before the Court of Cassation, on the basis of two motives of complain: a) the allegedly wrong application of the principle of distribution of the burden of proof by the Court of Appeal, especially with regard to the value attributable to the decision of the NCA; b) the lack of motivation, on account of the circumstance that the Court of Appeal did not consider a series of element assessed in the decision of the NCA concerning the causal link between the unlawful agreement and the damage sustained by the consumer.

• Civil judicial enforcement

Damages

Annulment of the Decision of the Court of Appeal which rejected the requests of the plaintiff to be awarded compensation for damages sustained as a consequence of an antitrust infringement.

The Court referred to a series of its previous decisions, in particular the decision n. 27527 of the 10th of December, 2013, which based its conclusions both on Articles 101 and 102 of the TFEU and on the ECJ decisions 295-298/04 (Manfredi et al.). In the analyzed decision the Court, although it did not explicitly referred to the ECJ Case Law, indirectly upheld the conclusions reached by the European judges with regard to private antitrust enforcement and the principle of effective protection of consumers rights.

 The main point of the decision concerns the value that a decision of the NCA assumes in a proceeding before a civil court. In this decision, the Court states that a proceeding before the NCA represents the first level of protection for the interest in the proper functioning of a competitive market. Nevertheless, the protection system is articulated on a multilevel basis, which comprises also the proceedings initiated, before a court, by the consumers affected by an anticompetitive agreement. Thus, the consumer must be able to use the decision of the NCA in his/her favor within the context of a civil proceeding. The court points out that this legal mechanism serves the purpose of ensuring an effective protection of rights, in accordance with Article 24 of the Italian Constitution.

On a more concrete level, the court analyzes the value of a NCA decision in a civil proceeding with regard to three different aspects of the burden of proof that the plaintiff has to bear:

1. The proof of the occurrence of an unlawful agreement: a NCA decision sanctioning an anticompetitive agreement between undertakings exempts the plaintiff from having to prove the existence of the agreement. In other words, the proof acquired in the proceeding before the NCA can found a presumption of the occurrence of the agreement before the civil judge. The presumption is, however, rebuttable, since the defendant (i.e. the insurance company) is allowed to provide evidence of the contrary. Nevertheless, the defendant cannot challenge the facts founding the NCA decision on the basis of the same arguments and proofs already rejected before the Authority;
2. The proof of the causal link between the unlawful agreement and the damage sustained: a NCA decision can also found the presumption that the damage sustained by the consumer directly depends on the anticompetitive conduct engaged in by the defendant. The presumption is nevertheless rebuttable but only on the basis of elements and arguments different by the ones already rejected before the Authority;
3. The proof of the damage itself: the court states that the proof of the damage cannot descend from the sole fact of the unlawful agreement (the damage cannot be in re ipsa). Nevertheless, the judge can uphold the occurrence of a damage by starting from the conclusions reached during the proceeding before the authority and then applying the principles of causality, with the result that an “ordinary” or “normal” consequential chain of events can suffice in order to assess the existence of the damage.

Role of the Charter and role of the general principles on enforcement

The Charter was not directly applied in the case, but an indirect reference can be noted as far as Article 47 is concerned, since the decision refers to the right to an effective remedy.

• Right to an effective remedy before a tribunal

The Court refers to Article 24 of the Italian Constitution with regard to the effectiveness of the right protection that the judicial system has to ensure. Article 24 states that “Everyone can take judicial actions to protect individual rights and legitimate interests”. The court mentions the principle of effectiveness in accordance with Article 24, thus assessing that the judicial system has to put everyone in the conditions not only to take a judicial action but also to effectively exercise and protect his/her rights.

The decision builds its reasoning about procedural rules regarding the burden of proof by considering the right to an effective remedy as defined in Article 13 of the ECHR and in Article 47 of the CFREU. The decision does not refer explicitly to these legal sources. Nevertheless, its whole reasoning revolves around the principle of effectiveness of the protection of consumers rights. This element is of particular importance especially with regard to the influence that EU Law and ECJ Case Law had on the decision. The principle of effectiveness as embraced by the decision appears to relate closely with the concept of Article 47 of CFREU. 

• Effectiveness

The decision highlights the importance of the concept of “effectiveness” of the judicial protection offered to the consumer. In second place, it directly refers to another decision of the same Court (Decision n. 27527 of December 10, 2013) which embraces a definition of “effectiveness” as it developed under EU Law and ECJ Case Law. The point stressed is that procedural rules concerning civil proceedings in antitrust matters cannot render impossible or excessively difficult for the consumer to exercise and protect their rights of compensation guaranteed by the European legal system. Thus, both decisions start from considering that the complexity of the market environment renders extremely hard to conjecture how interactions between the economic actors would have evolved without an unlawful agreement. Therefore, it would be practically impossible to fully prove the occurrence and the extent of the damage sustained by a consumer. Given these circumstances, the necessity for an effective protection of consumer rights justifies not only the use of legal presumptions but also the particular value of evidence assigned to the decisions of the NCA.

The status of the NCA decision with regard to the burden of proof within a civil proceeding is now regulated by Directive n. 104/2014, transposed in the Italian legal system with the Legislative Decree n. 3/2017. Article 7 of this Legislative Decree establishes that a NCA final decision ascertains, even in consequent civil proceeding, the existence of the antitrust infringement, its value and nature.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

Conform interpretation with EU law as interpreted by the CJEU

The decision does not directly refer to European Law or to ECJ Case Law, but put itself in dialogue with another decision of the same court which embraced the conclusions reached by the ECJ in the decisions 295-298/04 with regard to private antitrust enforcement. By designing a link between its different decisions, the Court proves to reason in accordance with the ECJ Case Law with regard to the principle of effectiveness.

To state and consolidate the conclusions reached by the national courts with regard to the issue discussed in the case.

Consolidation of an interpretative tendency within the case law of the National courts. The conclusions reached by the Court of Cassation have been reassessed and reinforced both by Directive n. 104/2014 and Legislative Decree n. 3/2017, which states that a NCA final decision ascertains the existence of the antitrust infringement, its value and nature. Thus, these aspects cannot be put under scrutiny again by a civil judge in a civil antitrust proceeding and have to be considered as ascertained. The judge retains its “power” of assessment with regard to the damages and the causal link between the infringement and the damages.

Nevertheless, as far as these elements are concerned, the NCA decision can form a rebuttable presumption, as the conclusions of the Decision of the Court of Cassation here examined are still valid and in accordance with the new discipline.

Additional notes on the decision

The decision states the rules that are to apply with regard to antitrust infringements civil proceedings initiated by a consumer asking for compensation. Thus, the Court of Cassation sets a framework of principles and procedural rules that enable the judges to operate in accordance with the principles of EU Law even in absence of a national statute or provision. After the transposition of the Directive 104/2014, with the Legislative Decree n. 3/2017, there is now a statute regulating the matter, thus upholding the conclusions reached by the Case Law of the Court of Cassation.