Agcm sanctions, between competing companies early prescription at the start of the investigation


by Francesco Machina Grifeo

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Taken from Top24 and Smart24

The Cassation, order n. 30783 filed today, declared BT Italia’s right to compensation of 12 million euros against Vodafone Omnitel for abuse of a dominant position time-barred

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The Supreme Court rejects the appeal of BT Italy spa. versus Vodafone Omnitel B.V for the reform of the decision of the Milan Court of Appeal which in 2018 he had declared prescribed the right to compensation for damages for abuse of a dominant position. The Court of Milan had ascertained the anti-competitive conduct, which had sentenced Vodafone Omnitel BV to pay 12,000,000.00 eurosplus interest. There First civil section, ordinance n. 30783 filed todaytherefore confirmed the decision of the second instance judge.

“In the hypothesis – reads the decision – in which to claim compensation for an antitrust offense, which follows a decision-making provision for ascertaining the offense and applying the sanctions of the AGCM, is acompeting firmwhich operates in the same sector as the dominant one and from which it can reasonably be assumed, according to the rule of diligence, that it observes and supervises the conduct of other companies, aimed at excluding it from competition, the dies a quo of the limitation period can be anticipated, with respect to the date of publication of the sanctioning provision, to start date of the investigation before the AGCMas the moment in which it can reasonably be assumed that the company had knowledge of the conduct object”.

In the specific case, as ascertained by the Judge of the appeal, the dies a quo of the limitation period was identified as 23 February 2005, the start date of the AGCM procedure for ascertaining the antitrust offence. There registered letter sent by BT Italia on 10 February 2009, however, it did not interrupt the limitation period, “provided that the same did not express the unequivocal will of the holder of the credit to assert its right against the debtor company, with the substantial effect of forming it in default”. While the subsequent registered letter from BT Italia dated 18 February 2010 was peacefully received by Vodafone on the following 1 March: “after, therefore, that the five-year limitation period had expired”.

To produce the interruptive effect of the prescription, explains the Supreme Court, an act must contain, “in addition to the clear indication of the obligated subject, the explanation of a claim and the notice or written request for compliance, which – although it does not require the use of solemn formulas or the observance of particular obligations – is suitable to manifest the unequivocal will of the credit holder to assert his right, against the indicated subject, with the substantial effect of forming him in default”. “This last requisite is not identifiable in simple solicitations without the nature of intimation and express request for fulfillment by the debtor”. Thus, despite BT Italia adducing an “unequivocal” manifestation of the will to obtain payment, for the Cassation “the absence of such a will it could well be deduced from the interlocutory scope of the communication, which was limited to hoping for a meeting between the parties”.

Agcm sanctions, between competing companies early prescription at the start of the investigation