The Italian Competition Authority (“ICA”) has recently issued new “Guidelines on sanctions” aimed at increasing the deterrent effects of its sanctioning activity, also through greater transparency in the decisional process and the steps followed for the calculation of the sanction, facilitating at the same time a full and effective jurisdictional scrutiny.
It is necessary to point out that it remains unchanged the limit of 10% of the turnover realized by the undertakings concerned in the financial year preceding the notification by ICA as maximum amount of a sanction. Should the final amount of the sanction be higher than the above-mentioned 10% the sanction shall be decreased for an amount exceeding such threshold.
The most relevant points introduced with the Guidelines are the following:
- a minimum threshold for the sanction, equal to 15% of the sales’ value, in case of price fixing, allocation of markets and limitation of output cartels, i.e. the most serious cases of competition law infringements; in determining such amount ICA will consider the value of the sales of goods or services to which the infringement directly or indirectly relates made by the undertaking during the last full year of its participation in the infringement;
- the possibility to increase the sanction up to 50% if the infringing undertaking’s worldwide turnover is particularly high if compared with respect to the value of the sales of goods or services to which the infringement relates or if the undertaking is part of a group with a significant financial size;
- the possibility to further increase the sanction taking into consideration the illegal profits realised by the infringing undertaking;
- to consider as a mitigating circumstance the adoption, and actual application, of a specific internal compliance program, as well as the introduction of the so called “amnesty plus”, i.e. the possibility of a further reduction of the sanction if the undertaking provides important information to allow ICA to find out an infringement different from that object of the investigation and falling within the scope of the leniency program.
The above-mentioned compliance program must be adequate and in line with the best national and community practices. The program must provide a full involvement of the management, the identification of the personnel in charge of the program, the identification and evaluation of the risks based on the activity performed and the operative context, the organization of training activities adequate with respect to the economic size of the undertaking, incentives for the full compliance with the program, as well as disincentives in case of failure to comply with the program, and the implementation of monitoring and auditing systems.