On July 28, 2000, the Autorità garante della concorrenza e del mercato (AGCM) sanctioned a cartel between a large number of competing insurance companies holding that they had had infringed Art. 2 ICA, which echoed Art. 81 CE, by entering into a complex horizontal agreement aimed at the “extended and pervading” exchange of strategic, sensitive, commercial information (e.g. on price of premiums and terms and conditions of insurance agreements).
The AGCM had ascertained that the premium for motor vehicle civil liability insurance in Italy were significantly higher than in some of the major member States. The size of the market thus affected by this cartel was extremely large since motor vehicle insurance against accident and consequent third party liability is obligatory. Hence, all drivers in Italy were directly impacted. In reaction to this anti-competitive cartel, a large number of consumers individually sued their insurers before the Giudici di Pace (i.e. Justices of the Peace who function as small claims courts), relying on the AGCM assertion that the cartel had gained a large premium advantage by its anticompetitive acts.
The insurers asserted a defence by invoking the exception of jurisdictional incompetence relying on article 33(2) ICA. They claimed that only the Corte di Appello, and not the Giudice di Pace, had the necessary competence to decide the matter. Many Giudici di Pace rejected this defence and awarded the plaintiffs damages approximating 20% of the insurance premiums representing the overcharge as, allegedly, conceded by the AGCM. A variety of legal grounds were cited as the basis for these decisions and awards. Some Giudici di Pace argued that the reimbursement of the overcharge was a restitution grounded in the prohibition against unjustified enrichment; others argued that the overcharge was a breach of the principle of good faith and fair dealing; others relied on the bar to unfair contractual terms in consumer contracts; while still others relied on simple tort.
The Unipol decision is a revirement of the precedent (also reported) of Cass. civ., sez. I., 9th December 2002, no. 17475 (“Axa decision”).
The Corte di Cassazione explained first that, for historical reasons, the ICA, a novelty in the Italian legal system, arose from an environment dominated by the concept of unfair competition contained in the Civil Code.
The prohibitions of unfair competition are primarily intended to protect commercial enterprises against anticompetitive acts by competitors. Laws and regulations promoting competition, inspired by the EC Treaty, are aimed more generally at protecting a more general legal interest.
In particular, the Corte di Cassazione called on its judicial brethren to bear in mind that Italian competition law must be interpreted in light of the principles of the EC Treaty and stated that “antitrust law is a law for all who are subject to the market, i.e. anyone who has an interest, which is procedurally enforceable, relating to the maintenance of the competitive character of the market [has juridical standing] to the extent to which he/she can claim a specific injury deriving from the breach or the decrease of such competitive character”
A cartel in breach of competition rules may also damage the economic interests of private parties, whether or not they are competitors of the collusive members of the cartel. Consumers, as the final purchasers of the marketed product, thereby completing the production and distribution chain, are affected directly by an unlawful agreement which eliminates the consumers’ right to choose effectively among competitive products. Referring to Courage Case at ECJ and its precedent-setting broadening of the scope of actions for private enforcement of EC competition law, the Court, in an understated tone, concluded that the interests of consumers are protected by Italian competition law. The motivation of the Court, based on a vague concept of competitiveness in the marketplace and not expressly recognising the importance of consumer welfare, may appear sibylline, but it effectively supersedes the narrow historical scope of Italian case-law with its limitation of competitive protections solely to commercial enterprises, leaving consumers unprotected against anticompetitive market practices.
According to Article 33(2) ICA the Corte di Appello is solely competent to hear claims based upon national competition law, independently of the amount of damages claimed and of the nature of the plaintiff. So, for competition issues, the Corte di Appello serves as sole arbiter of all issues of fact or law, its decisions are binding and not subject to judicial review other than by appeal to the Corte di Cassazione.