Merger control in Italy: overview

A Q&A guide to merger control in Italy.

The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in Italy. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.

For information on restraints of trade, monopolies and abuses of market power in Italy, visit Restraints of trade and dominance in Italy: overview.

This Q&A is part of the global guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.

For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.

Patrick Marco Ferrari, Crowe Horwath – Studio Associato Servizi Professionali Integrati
Contents

Regulatory framework

1. What (if any) merger control rules apply to mergers and acquisitions in your jurisdiction? What is the regulatory authority?

Regulatory framework

Merger control in Italy is mainly governed by the rules set out in Law No. 287 of 10 October 1990 (Law 287/1990).

Presidential Decree No. 217 of 30 April 1998 (Decree 217/1998) supplements the basic procedural provisions contained in Law 287/1990, with detailed rules governing proceedings before the Italian Competition Authority (ICA) (Autorità Garante della Concorrenza e del Mercato).

Other substantive and procedural provisions are contained in the following legislation:

  • Legislative Decree No. 28 of 22 January 2004 (Decree 28/2004) and Law No. 249 of 31 July 1997 (Law 249/1997), which contain specific rules applicable to the film distribution and media-communications industries.

  • Law No. 241 of 7 August 1990 (Law 241/1990), which sets out the rules applicable to administrative proceedings and a general right of access to documents retained by administrative bodies.

  • The general principles governing administrative sanctions set out under sections 1 and 2 of Chapter I of Law No. 689 of 24 November 1981. These principles also apply, as far as compatible, to fines levied by the ICA (Article 31, Law 287/1990).

Regulatory authority

The ICA enforces Italian merger control rules and is responsible as both an investigative and a decision-making body.

See box, The regulatory authority.

 

Triggering events/thresholds

2. What are the relevant jurisdictional triggering events/thresholds?

Triggering events

Transactions that qualify as a "concentration" and meet certain Italian turnover thresholds (see below, Thresholds), are subject to a system of mandatory prior notification. A concentration exists when any of the following occurs (Article 5(1), Law 287/1990):

  • Two or more undertakings merge.

  • One or more persons controlling at least one undertaking, or one or more undertakings, acquire the direct or indirect control of the whole or parts of one or more undertakings, whether through the acquisition of shares or assets, or by contract or any other means.

  • Two or more undertakings create a joint venture by setting up a new company (see Question 16).

The following types of transaction do not constitute a concentration:

  • Acquisitions of purely financial interest (Article 5(2), Law 287/1990).

  • Any transaction leading to the creation of a co-operative joint venture (Article 5(3), Law 287/1990) (see Question 16).

  • Transactions between undertakings that are not independent (intra-group transactions) (Part I, Section A.2, Modalities for notifying a concentration between independent undertakings).

  • Transactions involving companies not engaged in economic activities (Part I, Section A.2, Modalities for notifying a concentration between independent undertakings).

Thresholds

Transactions that do not fall under EU jurisdiction must be reported to the Italian Competition Authority (ICA) (Article 16(1), Law 287/1990), if both of the following turnover thresholds are met:

  • First threshold. The combined aggregate Italian turnover of all undertakings concerned exceeds EUR492 million in the year preceding the notification.

  • Second threshold. The aggregate Italian turnover of the target undertaking exceeds EUR49 million in the year preceding the notification.

From 1 January 2013, thresholds are cumulative; before this date the thresholds were alternative. The ICA can annually amend these turnover thresholds based on the gross national product price deflator index (Article 16(1), Law 287/1990). This index measures inflation or deflation by calculating the ratio of nominal gross national product to real gross national product. The last amendment was made on 10 March 2015 and entered into force on 16 March 2015.

To determine whether a concentration is reportable under Article 16(1), the ICA looks at the turnover generated by the undertakings through the sales of products and services. To this end, the ICA deducts returns, rebates and taxes directly related to the sale of products or the performance of services. The calculation of turnover is consistent with the principles set out in the European Commission's Consolidated Jurisdictional Notice (Commission Notice) (Consolidated Jurisdictional Notice on the control of concentrations between undertakings (2008/C 95/01)).

 

Notification

3. What are the notification requirements for mergers?

Mandatory or voluntary

Notification of concentrations that meet the relevant turnover thresholds is mandatory.

Timing

The concentration must be reported before its implementation but after the parties have agreed on all relevant elements of the concentration, to enable the Italian Competition Authority (ICA) to carry out a full assessment of the concentration.

A transaction is considered implemented when the buyer has acquired the ability to exercise a substantial influence on the behaviour of the target, that is, has acquired "control" over it (this moment usually coincides with the closing).

For newly-established concentrative joint ventures, notification must be filed with the ICA before registering the articles of association of the joint venture in the Italian Company Register (Part I, Section D.2., Modalities for notifying a concentration between independent undertakings).

Public tender offers must be notified to the ICA at the same times as their formal communication to the Italian Securities and Exchange Commission (Article 16(5), Law 287/1990) (see below, Form of notification).

Pre-notification formal/informal guidance

Parties can contact the ICA for guidance before formal notification. To this end, the parties must provide the ICA with:

  • Information on the activities and structure of the undertakings concerned.

  • A brief description of the reportable transaction.

  • A definition of the relevant markets.

  • Estimates of the parties' shares of sales on the relevant markets.

  • A list of the other competition authorities to which the transaction is notified.

This information should be transmitted to the ICA at least 15 days before the envisaged date for formal notification. Informal guidance provided by the ICA in this context is not binding on the ICA and is not published.

Responsibility for notification

For acquisitions, the undertaking acquiring control is responsible for filing the notification. For concentrative joint ventures, the mother companies are responsible for filing the notification. For a merger of equals, the merging undertakings are jointly responsible for filing. For public tender offers, the duty to notify is on the undertaking launching the offer.

Relevant authority

Reportable transactions must be filed with the ICA.

Form of notification

Reportable transactions are notified using the form available on the ICA website. For the Italian and English versions, see Online resources.

The form must be completed in Italian. However, if the relevant transaction agreements, to be attached to the form, are drafted in a language known by the officials (usually, English or French), the ICA does not usually require an Italian translation.

There are two types of forms:

  • The long form. The ICA requires a long form notification when either two or more participants to the concentration are active in the same market and have an aggregate post-merger market share of at least 25%. This form of notification is also required when one participant in the concentration will have a post-merger market share of at least 40% where at least one other participant is active in a market upstream or downstream of the same market. The long form is not required where the acquired undertaking holds a market share below 1%.

  • The short form. This simplified form is used for all other reportable concentrations. The ICA reserves the right to ask for (some of the) additional information required under the long form if the information required by the short form does not allow a proper assessment of the notified concentration.

Filing fee

From 1 January 2013, filing fees are no longer required.

Operational costs of the ICA are now covered through an annual contribution system, that is, a specific annual tax that Italian companies whose revenues exceeded EUR50 million in the prior financial year must pay. This annual contribution must be paid before 31 July of each year.

The amount of the contribution is equal to 0.08‰ of the revenues reported in the last approved balance sheet (Article 10(7)- ter, Law 287/1990). The ICA can increase or lower this per mille value within a range of 0.5‰ (Article 10(7)- quarter, Law 287/1990). For the calendar years 2014 and 2015, the ICA has lowered this value to 0.06‰.

Foreign companies must pay this contribution if they satisfy both of following conditions:

  • They have permanent offices in Italy.

  • The revenues of these permanent offices, as reported under heading A1 of the relevant income statement, exceed EUR50 million.

The maximum contribution threshold for each company cannot exceed 100 times the minimum amount (Article 10(7)- ter and (7)- quarter, Law 287/1990). For 2014 and 2015, this maximum contribution threshold is therefore equal to EUR300,000.

Obligation to suspend

Under the Italian merger control system, there is no obligation to suspend the transaction pending the outcome of an investigation (no standstill obligation). Therefore, the parties are free to implement the transaction at any time after the filing, without waiting for ICA approval.

However, the ICA, when opening Phase II, can order the parties to suspend the implementation of the concentration until the conclusion of the proceedings (Article 17(1), Law 287/90).

Generally, most parties choose not to implement their transactions pending the ICA's review. This is particularly advisable for transactions that are complex or that raise competitive concerns. In practice, the ICA can, in cases of subsequent prohibition, order the restoration of the conditions of effective competition, including the divestiture of the acquired business.

 

Procedure and timetable

4. What are the applicable procedures and timetable?

The Italian Competition Authority (ICA) must make a decision within 30 calendar days of receipt of a complete notification. Within this initial 30-day period (Phase I), the ICA can issue one of the following decisions:

  • A decision of inapplicability. A decision finding that the notified transaction:

    • does not fall within the scope of Law 287/1990 because it does not amount to a concentration within the meaning of Article 5 (see Question 2, Triggering events);

    • has an EU dimension and falls within the exclusive jurisdiction of the European Commission (see Question 2, Thresholds); or

    • does not meet the turnover thresholds set out in Article 16 (see Question 2, Thresholds).

  • A clearance decision. A decision declaring that no further investigation is required because it is already clear that the notified transaction does not create or strengthen a dominant position to significantly impede effective competition. No remedies can be imposed by the ICA in relation to a Phase I decision. The ICA can however subject a Phase I clearance to remedies offered by the parties (No. 31278/2014, Regional Administrative Tribunal of Lazio (TAR Lazio) and No. 4283/2011, Supreme Administrative Court (Consiglio di Stato)).

  • A decision to open an in-depth investigation (Phase II). If the notified transaction appears to raise competition concerns and may possibly be prohibited under Article 6 (see Question 7).

If the ICA opens a Phase II investigation, a final decision must be adopted within an additional 45 calendar days. If the parties fail to supply information and data in their possession that were requested by the ICA, this deadline can be extended by an additional 30 calendar days (Article 16(8), Law 287/1990).

For its Phase II decision, the ICA can do any of the following (Article 6, Law 287/1990):

  • Clear the transaction.

  • Prohibit the merger.

  • Subject the approval of the transaction to the adoption of specific remedies, either offered by the parties or imposed by the ICA (see Question 10).

In Phase II, the ICA has the same investigative powers as during proceedings under sections 2 (anticompetitive agreements) and 3 (abuse of dominant position) of Law 287/1990. Likewise, the parties enjoy certain procedural safeguards. In particular, they have the right to:

  • Be heard by the competent ICA's officials within the time limit indicated in the decision to open a Phase II investigation.

  • Obtain a final oral hearing before the ICA's Board shortly before the end of the investigation.

  • Submit documents and memoranda.

  • Access the ICA's file.

For an overview of the notification process, see flowchart, Italy: merger notifications.

 

Publicity and confidentiality

5. How much information is made publicly available concerning merger inquiries? Is any information made automatically confidential and is confidentiality available on request?

Publicity

Following the filing, the Italian Competition Authority (ICA) can post on its website a short notice, indicating the following:

  • The name of the undertakings concerned.

  • The main profiles of the transaction.

  • The relevant markets.

Within five working days from the publication, third parties can send the ICA their comments concerning the proposed merger. However, when filing the notification, the notifying parties can ask the ICA not to publish a short notice. This request must be adequately motivated (Communication concerning certain procedural aspects relating to concentrations regulated by Law 287/90).

The non-confidential version of Phase I and II decisions of the ICA is published on the ICA website and on the ICA official bulletin.

Automatic confidentiality

In the absence of a specific request by the parties, the ICA is not legally bound to carry out a confidentiality assessment in relation to the information filed (see below, Confidentiality on request).

However, under the principle established by the Italian administrative courts, the ICA can on its own initiative consider certain information provided by the parties as confidential (No. 8015/2010 and No. 8016/2010, Regional Administrative Tribunal of Lazio (TAR Lazio) and No. 6481/2010, Supreme Administrative Court (Consiglio di Stato)). This principle has been affirmed by the Italian administrative courts in relation to leniency materials. However, it is reasonable to argue that it may also apply to other types of documents, such as notification forms and other documents filed by the parties with the ICA in the context of merger control proceedings.

Confidentiality on request

Parties can request the ICA to treat certain documents and information as private and confidential, by highlighting the reasons why this material should not be disclosed or published (Article 14(3), Law 287/1990 and Articles 12 and 13, Decree 217/1998).

 

Rights of third parties

6. What rights (if any) do third parties have to make representations, access documents or be heard during the course of an investigation?

Representations

Phase I. Third parties do not have the right to formally participate in the proceedings other than submitting to the Italian Competition Authority (ICA) their comments concerning the proposed concentration following the publication of the relevant notice (see Question 5) or filing their own initiative memoranda with the ICA, expressing their position on the concentration. No formalities are required for submitting these memoranda.

Phase II. Within ten days of publication of the decision to open a Phase II investigation, third parties can file a reasoned application to participate in the Phase II proceedings. Interested third parties include undertakings, individuals, consumer associations, competitors or other bodies whose interests may be directly and immediately harmed by the proposed concentration or by any measures adopted by the ICA as a result of the investigation (Articles 7(1)(b) and 16(1), Decree 217/1998). Once third parties are admitted, they have a right to produce written submissions, documents, arguments and opinions.

Document access

Phase I. Rules governing competition proceedings do not specifically provide for a right of third parties to access the documents contained in the ICA file.

Phase II. Once third parties are admitted, they have a right to access the ICA file (with the exception of confidential information).

Be heard

Phase I. Rules governing competition proceedings do not specifically provide for a right of third parties to access the documents contained in the ICA file.

Phase II. Once third parties are admitted, they have a right to be heard by the ICA officials and, on reasoned request, the ICA can also allow them to participate in the final oral hearing.

 

Substantive test

7. What is the substantive test?

The substantive test measures "whether a concentration creates or reinforces a dominant position on the Italian market capable of eliminating or restricting competition appreciably and on a lasting basis" (Article 6(1), Law 287/1990).

The Italian Competition Authority's substantive appraisal takes into account the following factors, among other things:

  • The position on the relevant markets of the undertakings concerned.

  • The structure of the relevant markets.

  • The existence of possible barriers to entry.

  • The competitive position of the domestic industry.

  • The condition of access to supplies or outlets.

  • The alternatives available to suppliers and users.

  • The supply and demand trends for relevant goods and services.

 
8. What, if any, arguments can be used to counter competition issues (efficiencies, customer benefits)?

The Italian Competition Authority will evaluate any substantiated efficiency claim in the overall assessment of the merger. This is to determine whether possible efficiencies generated by the transaction are likely to counteract possible adverse effects on competition stemming from the merger.

Mergers may result in various types of efficiency gains that can lead to lower prices or other benefits to consumers. For example, the transaction may bring about cost savings in production or distribution, enabling the merged entity to charge lower prices. Consumers may also benefit from new or improved products or services, for example resulting from efficiency gains in research and development and innovation.

 
9. Is it possible for the merging parties to raise a failing/exiting firm defence?

There is no specific reference in Law 287/1990 to the failing firm defence. However, parties have raised this argument, and the Italian Competition Authority (ICA) has analysed it in a number of cases (see, for example, case C5109, Groupe Canal+/Stream, 13 May, 2002; case C11613, Compagnia Italiana di Navigazione/ramo di azienda di Tirrenia di Navigazione, 21 June, 2012). As of 1 December 2015, the ICA had not yet based a clearance decision on the failing firm defence.

The failing firm defence was applied in one decision by the Bank of Italy (Case C2988, Banco di Sicilia/Sicilcassa/Mediocredito Centrale, 3 April 1998). This decision dates back to when the Bank of Italy was still the authority in charge of reviewing the competition aspects of concentrations in the banking sector. Following the enactment of Law 262/2005, this power was transferred to the ICA.

In order for the defence to be accepted, the following criteria established by the EU courts must be satisfied:

  • The allegedly failing firm would in the near future be forced out of the market because of financial difficulties if it was not taken over by another undertaking.

  • There is no less anti-competitive alternative purchase than the notified merger.

  • In the absence of a merger, the assets of the failing firm would inevitably exit the market, and this would lead to a deterioration of the competitive structure identical or more significant than if the concentration was cleared. This may be the case, for example, where the market share of the failing firm could in any event accrue to the other merging party.

In addition, the ICA, on request of the Bank of Italy, may clear a merger between banks resulting in or strengthening a dominant position when this is strictly necessary for safeguarding the stability of one or more of the interested banks (Article 20(5-bis)(5-ter), Law 287/90).

 

Remedies, penalties and appeal

10. What remedies (commitments or undertakings) can be imposed as conditions of clearance to address competition concerns? At what stage of the procedure can they be offered and accepted?

The Italian Competition Authority (ICA) can subject its clearance of the transaction to the adoption of remedies (Article 6(2), Law 287/1990). For remedies, the ICA follows the principles set out in the Commission Notice on remedies acceptable under Council Regulation (EC) 139/2004 (the EU Merger Regulation) and under Commission Regulation (EC) 802/2004 (OJ 2008 C267/1), and its practice is largely consistent with that of the European Commission, except for an important aspect. While the Commission has only the power to assess the adequacy of remedies offered by the parties, the ICA has also the power to impose remedies on its own initiative as a condition for clearance.

The Italian Administrative Court has clarified that the ICA can subject its clearance decisions to remedies offered by the parties both in Phase I and in Phase II (No. 31278/2014, Regional Administrative Tribunal of Lazio (TAR Lazio) and No. 4283/2011, Supreme Administrative Court (Consiglio di Stato)). However, the ICA can impose remedies on its own initiative only in the context of Phase II proceedings.

Structural remedies are usually considered by the ICA to be the most effective means of remedying competition concerns.

On request by the parties showing good cause, the ICA can amend remedies previously provided in its clearance decisions (see Question 18).

The ICA can also clear a transaction where the parties amend the notified agreements, and therefore the notified concentration, removing the competitive concerns raised by the ICA (Article 18(2), Law 287/1990).

 
11. What are the penalties for failing to comply with the merger control rules?

Failure to notify correctly

When companies fail, intentionally or negligently, to notify a concentration within the set time frame (see Question 3, Timing), the Italian Competition Authority (ICA) can levy a fine on the undertaking responsible for the notification. This fine can be up to 1% of the responsible undertaking's turnover in the preceding year (Article 19(2), Law 287/1990). However, if the undertaking informs the ICA spontaneously (that is, on its own initiative) about the failure to notify and shows that it was unintended, the ICA usually imposes limited fines (around EUR5,000).

Implementation before approval or after prohibition

There is no obligation to suspend a transaction pending the outcome of an investigation under Italian merger control rules (no standstill obligation). However, the ICA, when opening Phase II, can order the parties to suspend the implementation of the concentration until the conclusion of the proceedings (Article 17(1), Law 287/90).

Under section 19(1) of Law 287/1990, the ICA can impose fines ranging from 1% to 10% of the turnover relating to the business that forms the object of the concentration on companies that either:

  • Implement a concentration that has been prohibited by the ICA.

  • Fail to comply with measures imposed by the ICA with a view to restoring competition in connection with a prohibited concentration that had already been implemented.

The Italian administrative judge has clarified that the fines provided under Article 19(1) of Law 287/1990 can be levied not only with respect to transactions that are explicitly prohibited by the ICA (but implemented by the parties), but also in relation to concentrations that are conditionally cleared by the ICA and for which the prescribed conditions are not fully respected by the parties(No. 6929/02, Regional Administrative Tribunal of Lazio (TAR Lazio)).

Failure to observe

See above, Implementation before approval or after prohibition.

 
12. Is there a right of appeal against the regulator's decision and what is the applicable procedure? Are rights of appeal available to third parties or only the parties to the decision?

Rights of appeal

The Italian Competition Authority (ICA) decisions can be appealed before the Regional Administrative Tribunal of Lazio (TAR Lazio). Judgments made by the TAR Lazio can be further appealed before the Supreme Administrative Court (Consiglio di Stato).

Judgments issued by the Supreme Administrative Court are subject only to the following:

  • Appeals to the Supreme Court (Corte di Cassazione) on jurisdictional grounds.

  • Appeal for revocation, under the circumstances set out in Articles 395 and 396 of the Italian Civil Code of Procedure. For example, an appeal for revocation is possible when the evidence on which the judgment is based is subsequently declared to be false or when, after the judgment, decisive evidence that the party could not put forward during the previous proceedings is discovered.

Decisions made by the ICA prohibiting a concentration, or decisions where the ICA conditionally clears a concentration, can be appealed. Undertakings can also appeal ICA decisions that impose fines (see Question 11, Implementation before approval or after prohibition).

Aggrieved third parties can also appeal merger control decisions of the ICA (see below, Third party rights of appeal).

Procedure

Parties can file an appeal before the TAR Lazio within 60 days from the notification or publication of the ICA decision (whichever comes first). The appeal must first be served to the relevant parties, and then filed with TAR Lazio. In the appeal, the parties can also request interim measures. Hearings for interim measures are held before the TAR Lazio, usually not long after the filing of the appeal. Interim measures are only available for claims that meet the following conditions:

  • Fumus bonis juris (that is, the claim appears to be prima facie grounded).

  • Periculum in mora (that is, time required for issuing a judgment on the merits would cause an irreversible and serious prejudice to the party).

Third party rights of appeal

The Italian administrative judge has clarified that persons other than the addressees of the ICA decision may be entitled to appeal such a decision provided that they are directly and individually affected by it. This is generally the case for competitors (No. 3865/04, Supreme Administrative Court (Consiglio di Stato)).

 

Automatic clearance of restrictive provisions

13. If a merger is cleared, are any restrictive provisions in the agreements automatically cleared? If they are not automatically cleared, how are they regulated?

In the notification form, the parties must indicate the restraints they deem directly related to, and necessary for, the successful implementation of the concentration (ancillary restraints). The Italian Competition Authority (ICA) assessment of the notified transaction usually contains an analysis of these clauses. Clearance decisions also cover restrictions considered to be ancillary.

To assess whether a given restriction may be characterised as ancillary to the notified concentration, the ICA follows the principles laid out in the Commission notice on restrictions directly related and necessary to concentrations (2005/C 56/03).

 

Regulation of specific industries

14. What industries (if any) are specifically regulated?

Italian law provides for specific merger control rules applicable to the following sectors:

  • Banks and financial institutions.

  • Insurance.

  • Telecommunications.

  • Cinema.

Banks and financial institutions

To determine whether merger control thresholds are met, turnovers of banks and financial institutions are considered equal to 10% of the value of their total assets, minus memorandum accounts (Article 16(2), Law 287/1990).

For concentrations involving banks, the Bank of Italy can review the mergers under the prudent management criteria provided under Article 19 of Legislative Decree of 1 September 1993, No. 385 (Article 20(5), Law 287/1990). The competition assessment of the transaction is carried out by the Italian Competition Authority (ICA). The decisions of both the Bank of Italy and the ICA must be adopted within 60 working days.

The ICA, on request of the Bank of Italy, may clear a merger between banks resulting in or strengthening a dominant position when this is strictly necessary for safeguarding the stability of one or more of the interested banks (Article 20(5-bis) and (5-ter), Law 287/90).

Insurance

To determine if merger control thresholds are met, the turnover of insurance companies is considered to be equal to the value of collected premiums (Article 16(2), Law 287/1990).

Before adopting its decision, the ICA must request the (non-binding) opinion of the Italian Insurance Supervisory Authority (Istituto per la Vigilanza sulle Assicurazioni) (IVASS) (Article 20(4), Law 287/1990). IVASS must issue its opinion within 30 calendar days of the receipt of the relevant documentation from the ICA. This 30-day term is added to the Phase I statutory time limits set out in Law 287/1990. As a result, Phase I is extended to up to 60 calendar days.

Telecommunications

For concentrations of undertakings active in the telecommunications sector, the ICA must request the (non-binding) opinion of the Italian Telecommunications Authority (Autorità per le garanzie nelle comunicazioni) (Article 1(6)(c)(11), Law 249/1997). Also in this case, the 30-calendar day term for the issue of the Italian Telecommunications Authority opinion is added to the Phase I statutory time limits set out in Law 287/1990. As a result, Phase I is extended up to 60 calendar days.

Cinema

Transactions concerning the market for film distribution are subject to specific merger control thresholds (Decree 28/2004). In particular, these types of concentrations are subject to notification if they result in the merging entity holding a share, in terms of turnover generated and number of cinemas, above 25% in any of the following cities:

  • Rome.

  • Milan.

  • Turin.

  • Genoa.

  • Padua.

  • Bologna.

  • Florence.

  • Naples.

  • Bari.

  • Catania.

  • Cagliari.

  • Ancona.

 
15. Has the regulatory authority in your jurisdiction issued guidelines or policy on its approach in analysing mergers in a specific industry?

Banks and financial institutions, insurance, telecommunications and cinema are subject to certain specific merger control rules (see Question 14). The Italian Competition Authority has not adopted any ad hoc merger control guidelines or notice in relation to these sectors.

 

Joint ventures

16. How are joint ventures analysed under competition law?

Article 5(1)(c) of Law 287/1990 expressly refers to the situation in which two or more undertakings acquire joint control over a company (that is, a joint venture).

A joint venture may arise from any of the following transactions:

  • The change from sole to joint control of an existing undertaking.

  • The creation of a new undertaking jointly controlled by two or more parent companies.

  • The sale by one parent company to a third party of its joint control interest.

The past distinction provided at EU level between concentrative and co-operative joint ventures remains applicable under Italian merger control rules. Accordingly, a joint venture constitutes a concentration within the meaning of Article 5 of Law 287/1990 if it fulfils all of the following conditions:

  • It is jointly controlled by two or more undertakings.

  • It performs all the functions of an autonomous economic entity on a long-term basis (that is, if it is full-function).

  • Its main object or effect is not the co-ordination of behaviour of the parent companies.

 

Inter-agency co-operation

17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to merger investigations? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information, remedies/settlements)?

The Italian Competition Authority (ICA) liaises with the European Commission and the national competition authorities of other EU member states in the context of the referral mechanisms provided under Articles 4(4) and (5), 9 and 22 of Regulation (EC) 139/2004 on the control of concentrations between undertakings.

The ICA also co-operates with the national competition authorities of other EU member states pursuant to the Best Practices on cooperation between EU National Competition Authorities in Merger Review, adopted on 8 November 2011 by the EU Merger Working Group. In addition, the ICA can exchange information on multi-jurisdictional mergers with the national competition authorities of other EU member states, and of member states of the European Economic Area and European Free Trade Area pursuant to the European Competition Authorities Notice system (see the Procedures Guide on the Exchange of Information between Members on Multijurisdictional Mergers).

The ICA can also co-operate with other competition authorities on the basis of the principles and recommendations provided by the International Competition Network, such as the Practical Guide to International Enforcement Cooperation in Mergers and the Merger Notification and Review Procedures Recommended Practice on Interagency Coordination.

 

Recent mergers

18. What notable recent mergers or proposed mergers have been reviewed by the regulatory authority in your jurisdiction and why is it notable?

The Italian Competition Authority (ICA) recently opened Phase II investigations under Article 16(4) of Law 287/90 in connection with five mergers, namely:

  • Case C11957 dated 4 December 2014, concerning the creation of a full-function joint venture active in the market for the distribution of books by Emmelibri and Gruppo Feltrinelli. Both parties were already important players in this market. They were also present in upstream and downstream sectors. The merger was eventually cleared based on remedies offered by the parties.

  • Case C11982 dated 9 July 2015, concerning the creation of a full-function joint venture between Giochi Preziosi and Artsana, active in the market for the sale at retail level of a full range of products for infants and children, through the so-called baby stores. Both parties were already materially active in this market as well as in upstream sectors. The concentration was eventually cleared by the ICA subject to specific remedies, partly offered by the parties and partly imposed by the ICA itself.

  • Case C11990 dated 15 July 2015, concerning the merger of Società Elettrica Altotesina and Azienda Energetica in a newco structure. The parties are two local utilities active in the production of electricity, the distribution and sale of electricity and natural gas and in the management of district heating plants. This newco was to be jointly controlled by the Province of Bolzano and the Municipalities of Bolzano and Merano. The concentration was eventually cleared by the ICA subject to remedies offered by the parties.

  • Case C11987, concerning the prospective public tender offer by EI Towers for the shares of Rai Way. The merger would have resulted in the concentration of the two main broadcasting network operators in Italy. The merger entity would have held about 70-75% of all network facilities for TV broadcasting at national level. In the course of the Phase II investigation, the ICA raised material doubts as to the compatibility of this merger with national merger control rules. The parties eventually abandoned the merger before the ICA adopted its final decision on the merits.

  • Case 12001, dated 11 November 2015, concerning the acquisition by Libero Acquisition of Seat Pagine Gialle. Libero Acquisition is the holding of a group active in the market of internet advertising and digital services. Sear Pagine Gialle is active in the market of advertising and local communication services, mainly in Italy. The concentration was eventually cleared by the ICA, subject to remedies offered by the parties.

  • Case C12005, concerning the acquisition of Moby and Compagnia Italiana di Navigazione, two undertakings mainly active in the market for ferry services, by the holding Onorato Partecipazioni. The ICA raised concerns with respect to the market concentration resulting from the merger on the sea routes Genova-Olbia and Civitavecchia-Olbia. As of 1 December 2015, the investigation is still pending.

 

Proposals for reform

19. Are there any proposals for reform concerning merger control?

On 10 February 2014, the Italian Competition Authority (ICA) launched a public consultation as to the opportunity to amend the current cumulative merger control thresholds as follows:

  • The first turnover threshold. This relates to the combined aggregate Italian turnover of all undertakings concerned and would remain the same (currently EUR492 million).

  • The second threshold. This concerns the Italian turnover of the target and would be lowered to EUR10 million.

  • An additional third threshold. This would provide that the Italian turnover generated by each of at least two of the undertakings concerned must exceed EUR10 million.

The public consultation lasted 20 days. Following the replies and comments received, the ICA decided to delay this project until at least the end of 2014. At 1 December 2015, there is no formal communication as to whether the ICA is still actively considering this proposal for reform.

The ICA is also considering introducing a simplified procedure for concentrations that do not raise specific competition concerns.

In addition, three reform proposals were presented by the ICA to the Italian Government through Recommendation No. AS988 of 2 October 2012. The common aim of these proposals is to address and solve, through an amendment of Articles 6(1), 5 and 16(2) of Law 287/1990, certain divergences between the Italian and the EU merger control regimes. In particular, the reform proposals concern the following:

  • The substantive test under Article 6(1) of Law 287/1990. The first reform proposal is directed to align the Italian substantive test with the EU substantive test (see Question 7).

  • The co-operative joint venture. The ICA has proposed to add to Article 5 of Law 287/1990 an explicit reference to the applicability of merger control rules also to full-function co-operative joint ventures (see Question 16).

  • The calculation of turnover. The third reform proposal concerns the method for the calculation of turnover of banks and financial institutions. Based on the ICA proposal, the new version of Article 16(2) should substantially mirror Article 5(3)(a) of Regulation (EC) 139/2004 on the control of concentrations between undertakings (Regulation (EC) 802/2004 implementing Regulation 139/2004) (see Question 14, Banks and financial institutions).

 

Online resources

The Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) (ICA)

W www.agcm.it

Description. The official website of the ICA is structured in different sections. The website contains a significant amount of information and documents relating to ICA activities, including an organisational chart, relevant legal provisions and guidelines, ICA decisions, the ICA's official journal, press releases, and events organised or sponsored by the ICA. The website is maintained and updated by the ICA itself.

W www.agcm.it/en

Description. This is the official English version of the website. However, it contains only part of the information and documents contained on the Italian language website.



The regulatory authority

The Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) (ICA)

Head. Giovanni Pitruzzella

Contact details
Piazza G. Verdi, 6/a
00198
Rome
Italy
T +39 06 8582 1872
F +39 06 8582 1177
E protocollo.agcm@pec.agcm.it
W www.agcm.it

Outline structure. The ICA board is composed of three commissioners. One of them holds the position of President. The ICA board members are assisted by a Secretary General. The ICA board heads different Directorates. One of them is the Directorate General for Competition, which is further structured in a number of Directorates:

  • Energy and Basic Industries.
  • Communications.
  • Banking.
  • Foodstuff and Transport.
  • Manufacturing and Services.

Responsibilities. The ICA has four main areas of activity:

  • Anti-trust (including cartels, vertical agreements, abuses of dominant position and merger control).
  • Protection of consumers (including unfair commercial practices and unfair contract terms).
  • Conflict of interests.
  • Legality rating.

Person/department to apply to. The notification form and the relevant documents are filed with the ICA registry.

Procedure for obtaining application documents. Notification forms are available on the ICA website.



Contributor profile

Patrick Marco Ferrari, Head of Competition and Anti-trust Department

Crowe Horwath – Studio Associato Servizi Professionali Integrati

T +39 02 806 731
F +39 02 8901 0836
E patrick.ferrari@crowehorwath.it
W www.crowehorwath.net/it

Professional qualifications. Milan, Italy, 2008

Areas of practice. EU law and competition law; unfair commercial practices.

Recent transactions

  • Advising on a wide range of anti-trust matters, including merger control, cartels, anti-competitive agreements and practices, abuse of dominant position and private anti-trust enforcement.
  • Wide experience in leniency matters, both at European and national level.
  • Representing undertakings in the context of unfair commercial practices proceedings.

Publications. Authored several publications and regularly lectures on anti-trust matters.


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1247437513025", "objName" : "Merger control Italy", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/6-504-6066?source=relatedcontent", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-724da81a:1561aed0d66:-287b", "analyticsSessionCookie" : "2-724da81a:1561aed0d66:-287a", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }