Note prepared by Andrea Gemma, Founding Partner of GPD and Chiara Adele Pero, Managing Associate.
In recent days, the State Council has issued final rulings concerning appeals against the largest antitrust fine – the so-called “corrugated cardboard cartel” – ever imposed by the AGCM.
Despite the uncertainties and contradictions that have characterized the AGCM’s conduct, the State Council has supported the prosecutorial line establishing the existence of two restrictive agreements in the corrugated sheet market and in the boxes market.
The implications of the State Council’s jurisprudence are and will be substantial.
Several antitrust private enforcement actions have already been initiated for compensation of commercial damages suffered by operators inadvertently affected by the price increases resulting from the illegal agreements thus sanctioned.
In a judicial context that will prove to be absolutely turbulent, not only the so-called leniency applicants (those who confessed to the existence of the cartel) will be sued, but also other market operators involved through the confessions of the “so-called cooperating companies,” within the scope of restrictive competition agreements (and to whom the State Council has not given credence regarding their non-involvement).
Many antitrust private enforcement actions are financed by litigation financing funds, which have demonstrated their willingness to invest in compensation actions where the issue of proving civil liability is structurally facilitated by the ruling (precisely those of the State Council referred to herein) that definitively establishes the existence of a restrictive competition agreement.
Two actors and two scenarios
The companies participating in the cartel, including those involved through presumptive reasoning, must robustly organize their defense by emphasizing the absence of causal nexus and a correct delimitation of the alleged commercial damage suffered by the commercial operators with whom they negotiated during the period covered by the agreements.
On the other hand, market operators who make extensive use of corrugated cardboard for packaging, boxes, packaging and transport of their goods are initiating compensation actions to recover the alleged increased costs – incurred in the purchase of cardboard, packaging and boxes – due to the restrictive competition agreements.
Our perspective
Both the companies participating in the cartel and market operators must carefully evaluate their position and conduct thorough analysis. The importance and impact of econometric assessments should not be underestimated in order to obtain adequate protection.
Our Firm, with a team of professionals possessing transversal and complementary expertise, supports the companies involved and interested in these assessments and in the selection of the most appropriate defensive strategy. In these cases, a dispute is “an asset” that must be defended and valued from both a judicial and strategic perspective. If you wish to position yourselves and enhance your case, we are at your disposal.
