Antitrust damages litigation in Italian courts: Key challenges and open issues regarding the application of Italy’s national legislation implementing the EU Damages Directive

1. Legislative Decree 3/2017 transposing the EU Damages Directive and the previous regime applicable to antitrust damage claims

In Italy, Legislative Decree 3/2017 implemented Directive 2014/104/EU (the EU Damages Directive or the Directive), which sets out rules on actions for damages under national law for infringements of EU and Member State competition law provisions. The Directive, and in Italy the Decree, introduced substantive and procedural measures to encourage private enforcement of competition rules and to reduce areas of divergence between Member State antitrust damages regimes.

However, harmonisation under the Directive is limited by the principle of national procedural autonomy, whereby each Member State defines its national procedural framework for enforcing EU law. As a result, the Directive’s incentives to promote antitrust damages claims must align with the constitutional principles of national legal systems, which differ across jurisdictions. This has led to several requests for preliminary rulings from national courts to the Court of Justice of the European Union (CJEU) seeking clarification regarding how to apply aspects of the Directive.

2. Temporal application of the Decree

Between 2013 and 2024, Italian courts delivered over 130 judgments in follow-on antitrust damages cases, both at first instance (courts in Rome, Naples and Milan), on appeal, and before the Supreme Court (Corte di Cassazione). These figures are expected to rise due to the favourable rules introduced by the Decree for antitrust damages claims.

Under Article 22 of the EU Damages Directive and Article 19 of the Decree, certain procedural provisions may apply retroactively to actions brought after 26 December 2014. By contrast, the substantive provisions of the Decree – such as those on limitation periods, the presumption of harm, and exceptions to joint liability – cannot apply retroactively. The temporal application of the new regime remains highly debated in national courts, including in Italy, and has generated multiple preliminary ruling requests to the CJEU. This is because interpretation of these rules must balance the Directive’s objectives with fundamental principles such as legal certainty and predictability regarding the consequences faced by parties that infringe competition law.

3. Limitation period

The statute of limitations is one of the most debated issues before Italian courts, as it requires balancing the claimant’s right to compensation with the defendant’s protection against indefinite liability. As civil liability for anti-competitive conduct is generally tortious, the right to damages expires after five years under Article 2043 of the Italian Civil Code. Article 8 of the Decree also establishes a five-year limitation period for damages actions. Disputes regarding the new limitation rules in the decree mainly concern: (a) the criteria for determining the dies a quo (starting point); and (b) their non-retroactive application.

3.1 The criteria to identify the dies a quo

Awareness of harm resulting from anti-competitive conduct often emerges at a relatively late stage due to the secrecy surrounding cartels or complexity in determining whether conduct amounts to an abuse of dominant position. Under the Directive, the Decree, and Italy’s previous regime, the limitation period starts when the claimant knows – or should know – the infringement, damage and infringer’s identity. Courts assess the dies a quo, case-by-case, considering market knowledge and when sufficient information was available.

In Italy, the period may begin with Italian Competition Authority (ICA) investigations if the claimant is a complainant, intervener or competitor. The Corte di Cassazione recognises that the ICA initiating proceedings can mark the dies a quo as it publicly reveals the conduct and its unlawfulness, but stresses the need for a case-specific evaluation of a claimant’s expertise and awareness.

At EU level, the CJEU (e.g. in Cogeco, Heureka, Volvo & DAF, Deutsche Bank, CP v Nissan Iberia) also consistently applies a knowledge-based criterion.

In CP v Nissan Iberia (C-21/24, 4 September 2025), the CJEU held that the limitation period for actions based on national competition authority decisions cannot start until the decision is definitive (i.e. after any judicial review and the decision is no longer appealable) and officially published with a clear date and accessible to the public. Mere publication on an authority’s website would be deemed insufficient if these requirements are not met. Article 101 TFEU and Article 10(2) of the Directive would preclude national rules allowing a limitation period to begin to run before a decision is final and properly published.

However, this interpretation appears to be largely grounded in the specific features of Spanish law and provides for a very broad interpretation of the principle of effectiveness, which may not be uncritically transposed to other national legal systems. For instance, in the Italian legal framework, the ICA issues a detailed and reasoned decision to initiate proceedings (“provvedimento di avvio istruttoria”), rather than a short press release, as is the case for the Spanish Competition Authority. Furthermore, the ICA’s infringement decisions are immediately enforceable and presumed valid unless suspended by the administrative court. Thus, in Italy, there are strong grounds to support the view that the dies a quo may need not wait for a final decision, provided a case-specific assessment confirms adequate awareness.

3.2 The non-retroactive application of the new rules on the limitation period set out in the Decree

The Decree introduces the suspension of the limitation period for follow-on claims when the ICA starts an investigation. Article 8 provides that this suspension lasts one year from the date the infringement decision becomes final or the proceedings close. It also states that the limitation period cannot start before the infringement ends, unlike the previous regime where it began once the claimant knew or should have known about the infringement, its effects and the infringer’s identity.

This change generally delays the expiration of the limitation period, making time-bar arguments harder for defendants. For conduct spanning both regimes, it is crucial to determine which rules apply. In order no. 5232/2024, the Corte di Cassazione, following CJEU guidance in Volvo & DAF, ruled that the five-year limitation under Article 8 applies to claims filed after the Decree’s entry into force, even if the conduct ceased earlier, provided the previous limitation period had not expired by 27 December 2016 – i.e. the time-limit for Member States to implement the Directive. The Court referred to an “ongoing legal situation,” arguing the new rule governs consequences of a legal fact, citing tax law precedents. However, it can be argued that limitation periods are substantive law, linked to when harm occurred rather than when the claim is filed.

The Court’s reasoning would only hold if the old regime failed to comply with EU principles of effectiveness and equivalence. However, there is no evidence that the Italian statute of limitations (Article 2947 of the Italian Civil Code) is inherently incapable of ensuring effective enforcement, nor did the Corte di Cassazione engage in such an assessment in the above-mentioned judgment. 

4. Presumption of the existence of harm

The Decree also introduced a rebuttable presumption that cartels cause harm, thereby shifting the burden of proof to defendants. However, claimants must still demonstrate causation and quantify damages. Even under the previous regime, decisions of the ICA were regarded as a privileged source of evidence, and courts could use presumptions to establish both the existence and extent of harm, though defendants retain the possibility of contesting the causal link on the basis of sector-specific circumstances.

5. Share of liability

As to the allocation of liability, Italian law traditionally provides for joint and several liability, with internal apportionment according to the seriousness of fault. The Decree introduced exceptions for small and medium-sized enterprises and immunity recipients, reducing their exposure even when they played a significant role in the infringement. The criteria for apportionment among infringers remain undefined, leaving courts to decide on a case-by-case basis, taking into account elements such as the overcharge obtained, market position and degree of participation.

6. Appointment of experts and the court’s power to quantify damages using equitable criteria

Given the complexity of quantifying harm, court-appointed experts play a central role in antitrust damages litigation. In addition to the appointment of experts during the evidentiary phase of ordinary damages proceedings, Italian law also provides that preventive technical consultations may be requested, although courts have reached different conclusions about their admissibility. In the Trucks litigation, such applications were rejected because mere reference to a Commission decision (case AT.39824), was considered insufficient to establish liability, whereas in other cases they have been admitted.

The Decree also allows courts to quantify damages on an equitable basis, in line with Article 1226 of the Civil Code and Article 17 of the Directive, particularly to avoid disproportionate costs in cases of limited value. Judges may depart from expert reports, provided they justify their reasoning with reference to the evidence and criteria applied. The effectiveness of expert evidence ultimately depends on the judge’s capacity to critically assess the findings and integrate party-appointed experts’ observations.

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The Italian experience shows that the implementation of the EU Damages Directive has significantly reshaped private antitrust enforcement, yet several challenges remain unresolved. Temporal application of the new rules, determination of the dies a quo, the scope of the presumption of harm, exceptions to joint liability and the balance between expert evidence and judicial discretion continue to generate debate. Italian courts, have close regard to EU case law, are progressively shaping the contours of antitrust damages litigation, highlighting both the progress achieved and the uncertainties that still characterise the system.