Court of Cassation to Determine Legal Effects of Anti-Competitive Agreements on Downstream Contracts

Back to All Thought Leadership

On December 30, 2021, the Joint Section of the Italian Court of Cassation (which is the last-instance court for civil matters) issued a landmark judgment[1] clarifying the criteria to determine the civil law consequences of “downstream” contracts with respect to an upstream framework arrangement that was found to infringe the national equivalent of Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibit anti-competitive agreements. The court held that legal effects on downstream contracts of an anti-competitive scheme are governed by national law and therefore such contracts cannot be deemed automatically void in their entirety by invoking EU law. Under Italian law, only the individual clauses of downstream contracts that reproduce the same content that appears in an upstream illegal arrangement can be deemed null and void (partial nullity), as a “functional link” between such clauses and the anti-competitive scheme can be presumed, provided that the parties would have concluded the overall downstream agreement even without the disputed clauses.

Facts and background of the dispute…

Continue reading

Sign In

[login_form] Lost Password