Programmi di clemenza e azione risarcitoria: convivenza possibile?

This work stems from the European Directive on antitrust damages actions and enquires on the need to preserve the effectiveness of antitrust public and private enforcement within the framework of the relationship between the leniency programmes and actions for damages. As is well known, the leniency programmes allow companies involved in an agreement prohibited by competition law to cooperate with competent Antitrust Authority in order to disclose such an infringement and obtain the immunity or a reduction from fines. This generates the need to preserve the secrecy of leniency statements in order to not deter companies from using such a programme. The Directive provides, inter alia, that national courts can never order the disclosure of leniency statements and that joint and several liability is not applied to the company which has been granted immunity from fines. Therefore, within an action for damages, such a company enjoys the prior enforcement of other members of the prohibited agreement. However, this solution sacrifices excessively the other requirement imposed by European Law which is to ensure the effectiveness of actions for damages. This work criticizes the solution adopted in the Draft Directive. It opposes both the complete ban to disclose leniency statements, since it risks to affect the complementary role played by antitrust private enforcement with respect to antitrust public enforcement; and the rule on joint and several liability, because, if read in conjunction with the complete ban, grants an unfair advantage to the undertaking benefiting from immunity, to the detriment of the effectiveness of actions for damages. Therefore, the work proposes the application to damages action of the same exchange logic applied to leniency programmes within the administrative framework. As a consequence, the private plaintiff should be given access to leniency statements and, conversely, should lose the advantage granted by the new rule on solidarity; on the other hand, the defendant which has been granted immunity from fines should enjoy the beneficium excussionis rule and suffer the facilitation on the burden of proof granted to the claimant.