Abstract

Antitrust damages: Limitation period and evidentiary value of commitments decisions ( J. e . l .: K21; K41; L40). In two parallel rulings delivered in early 2020, the Italian Supreme Court provided guidance on two issues related to antitrust damages actions: the starting date of the limitation period and the evidentiary value of commitment decisions. In the cases under review, the Supreme Court found that the limitation period started to run from the Italian Competition Authority’s decision to open the investigation. Nevertheless, in a number of cases, the limitation period could start to run before the opening of the proceedings, especially where the investigation was initiated following a complaint by competitors, trade associations or other third parties. The Directive 2014/104/E u and the Legislative Decree No.3/2017 have significantly innovated the matter by introducing a particularly favorable regime for injured parties, which however appears to excessively sacrifice legal certainty and could hinder the exercise of the right of defense. The Supreme Court also held that commitment decisions can give rise to a rebuttable presumption of infringement in an-titrust damages actions. Such a solution appears difficult to reconcile with the nature of such decisions and could discourage firms from offering commitments at an early stage of the proceedings to overcome the competition authority’s concerns.