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 multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Competition Q&As visit www.practicallaw.com/competition-mjg.
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-mjg.
Mergers, acquisitions and any other transaction amounting to a "concentration" (see Question 2, Triggering events) are subject to compulsory notification prior to closing if certain turnover thresholds are met (see Question 2, Thresholds).
The relevant regulatory framework is set out in the following provisions:
The Competition Act (Law No. 287 of 10 October 1990) is the main legal statute. It:
establishes the Italian Competition Authority (Autorità garante della concorrenza e del mercato) (IAA);
contains the substantive provisions of competition law;
contains the main procedural rules;
clarifies that its substantive provisions, including those on merger control, must be interpreted in accordance with the principles of EU law.
Presidential Decree no. 217 of 30 April 1998 lays down more detailed rules applicable to proceedings for anti-competitive agreements, abuses of dominant positions and concentrations. It clarifies the various procedural steps and defines the fact-finding powers of the IAA.
The merger notification form is available on the IAA website (www.agcm.it). It also contains IAA guidelines relating to concentrations.
A notice on certain procedural aspects regarding mergers/acquisitions (Procedural Notice), providing the framework for pre-filing contact with the IAA (IAA Bulletin No. 22 of 20 June 2005).
The competent authority for anti-trust control of concentrations is the IAA.
See box, The regulatory authority.
A transaction qualifies as a concentration when a change of control on a lasting basis over an undertaking (or a going concern), occurs as a result of that transaction. A concentration arises when (Article 5, Competition Act):
Two or more undertakings merge.
An acquisition of direct or indirect control of the whole or parts of one or more undertakings occurs by one or more undertakings or by one or more persons controlling at least one undertaking.
Two or more undertakings create a full-function and non-coordinative joint venture by setting up a new company.
The acquisition of control can take place through the acquisition of shares or assets, by contract or by other means. In this respect, the concepts of concentration and control are interpreted by the Italian Competition Authority (IAA) in line with EU law and practice (as indicated in the Commission's Consolidated Jurisdictional Notice (OJ 2008 C95/1)).
The IAA may take action (such as opening a phase II investigation (see Question 4) or requesting information), against a concentration within 30 days of notification, or from when it had knowledge of it.
A concentration that does not have a Community dimension under Article 1 of Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation), must be filed with the IAA when both the following turnover thresholds are met:
The combined aggregate Italian turnover of all the undertakings concerned exceeds EUR482 million.
The aggregate Italian turnover of the target(s) exceeds EUR48 million.
The turnover thresholds are revised every year by the IAA taking into account the gross domestic product (GDP) price deflator index. The most recent revision of the thresholds occurred on 2 April 2013. Before 1 January 2013, the notification obligation was triggered if just one of the two thresholds was met.
When calculating the thresholds, the following turnover must be taken into account:
For the acquiring company, the aggregate domestic turnover of the group (reference must be made to all the controlling and controlled companies, as well as to those controlled by the same controlling company).
For the acquired company, the domestic turnover of the undertaking, or parts of the undertaking, being acquired, as well as any company controlled by it.
In order to determine the turnover and to geographically allocate it, the principles indicated in the Commission's Consolidated Jurisdictional Notice (see above, Triggering events) are usually applied.
Different rules apply in relation to the calculation of turnover for:
Banks and financial institutions. The relevant figure is the value of 10% of their total assets, excluding memorandum accounts.
Insurance companies. The relevant figure is the value of premiums collected.
There is no other test to determine whether a concentration must be filed to the IAA (for example, market shares or asset values) with the exception of the cinema sector (see Question 14).
If a bank or financial institution acquires shares in an undertaking with a view to re-selling them on the market, no acquisition of control, no concentration and no obligation to notify the IAA is regarded as arising, provided the bank or financial institution does not exercise any voting rights vested in those securities while it holds them. The holding period must not exceed 24 months (par. 2, Article 5, Competition Act) (see Question 1).
Intra-group transactions between companies or undertakings which are part of the same group do not constitute a concentration.
Acquisitions of foreign-registered undertakings and the setting up of joint ventures and mergers where at least one of the parties to the transaction is foreign-registered are excluded from the obligation to register with the IAA, where all the following conditions apply:
The foreign party does not have any turnover in Italy.
The foreign party has not had any turnover in Italy in the previous three years.
The transaction does not lead to the target company or new entity operating in the Italian market.
Mandatory or voluntary
Notification of concentrations meeting the turnover thresholds is mandatory (see Question 2).
The notification must be filed with the Italian Competition Authority (IAA), before the transaction takes place (closing). Notifications are usually not accepted before the parties have reached an agreement on the essential aspects of the transaction. The requirement to file before the transaction takes place is considered fulfilled if the implementation of the agreement is made conditional on the IAA's approval.
In cases involving a public takeover bid which will result in a concentration meeting the turnover thresholds, the IAA must be notified at the same time as the notification to the Italian Securities and Exchange Commission (Commissione Nazionale per le Società e la Borsa) (CONSOB), under financial regulation rules.
The IAA is keen to encourage pre-notification contact in order to support stronger co-operation with the concerned undertakings and to facilitate the subsequent assessment of the concentration. The procedure for obtaining pre-notification guidance is regulated by the Procedural Notice (see Question 1).
The procedure can be initiated by submitting to the IAA, at least 15 days before the date on which the parties intend to serve the formal notification, an informal communication, containing the following information:
The identity of the parties to the concentration.
A short description of the transaction.
The description of the relevant markets and the market share held by the parties.
Whether or not the concentration must be filed with any competition authorities in other jurisdictions.
Pre-notification discussions with the IAA are strictly confidential.
The IAA does not have any time limit for discussing or commenting on the pre-notification communication that the undertaking has submitted.
Responsibility for notification
The responsibility for notifying a concentration to the IAA lies with the undertaking acquiring control. In cases of merger, acquisition of joint control or the creation of a concentrative joint venture (see Question 15), the responsibility rests with each undertaking acquiring joint control. The parties can make joint applications using the same form. The notification can also be filed by the undertaking which, directly or indirectly, controls the party responsible for filing.
The notification must be filed with the IAA. For some specific sectors, such as insurance and telecommunications, the IAA requires a non-binding opinion by the relevant regulatory authority before adopting a decision (see Question 14).
Form of notification
There are two different forms of notification, depending on the impact the concentration has on the relevant market(s):
Full-form. This form must be used for:
horizontal concentrations leading to a combined market share of 25% or more; and
non-horizontal concentrations as a result of which one of the parties will have a market share of 40% or more, provided at least one other party to the concentration operates in an upstream or downstream market (except where the market share of the target is below 1%, in which case the full-form notification is not required).
The full-form notification is a more demanding form of notification. It requires the provision of detailed information on trade marks, the structure of supply and demand, and market entry.
Short-form. This form must be used for all notifications not requiring full-form notification.
From 1 January 2013, filing fees have been abolished. A new financing regime has been established to cover the IAA budget.
Under the new regime, all companies based in Italy (regardless of merger activity), with a total turnover in excess of EUR50 million must pay an annual fee to the IAA of 0.08% of their turnover. The maximum fee has been fixed at 100 times the minimum fee (EUR400,000). The annual fee for 2013 had to be paid by 30 October 2012. From 2014, the deadline for payment will be 31 July of each year. The IAA can increase the fee calculation method through a resolution.
Obligation to suspend
There is no obligation to suspend the transaction pending the outcome of the IAA review. However, if the IAA decides to open a formal investigation (see Question 4), it can order the parties not to proceed with the concentration until the investigation is concluded. This power has been used very rarely in practice.
If the transaction is concluded before the IAA has decided on its compatibility with the competition rules and the IAA subsequently does not clear the transaction, the IAA can require measures for restoring conditions of effective competition and removing any effects that distort it (for example, through ordering divestitures) (see Question 10).
Procedure and timetable
The Italian Competition Authority (IAA) follows two separate procedures, phase I and phase II for evaluating concentrations.
Within 30 calendar days of receiving the notification the IAA must either (Article 16(4), Competition Act):
Clear the transaction if an investigation is not necessary, and immediately inform the notifying parties.
Commence a phase II investigation, if the IAA considers that the concentration may be prohibited and an in-depth analysis is needed to assess whether the transaction restricts competition.
The 30-day time limit is reduced to 15 days in the case of public takeover bids.
The IAA can request clarification of the information provided and interrupt the 30-day time limit, if the information provided in the notification is either:
If the IAA decides to open a phase II investigation, it must notify the undertakings concerned, within 45 days of commencing such investigation, whether it has decided to (Articles 16(8) and 18, Competition Act):
Prohibit the concentration.
Clear the concentration unconditionally.
Clear the concentration, subject to commitments offered by the undertakings which remove any aspects of the concentration that were initially deemed likely to distort competition (see Question 10).
Clear the concentration, subject to measures prescribed by the IAA to prevent the creation or strengthening of a dominant position.
The 45-day period can be extended during the course of the investigation, for a further period of no more than 30 days, where the undertakings concerned fail to provide information and data in their possession on request.
For an overview of the notification process, see flowchart, Italy: merger notifications (www.practicallaw.com/5-504-6062).
Publicity and confidentiality
The Italian Competition Authority (IAA), must publish a notice on its website for each notified concentration fulfilling both turnover thresholds (see Question 2). The notice is published a few days after the transaction is notified. Interested third parties have five days from publication of the notice to submit comments on the transaction.
Prior consent of the notifying parties is required to publish the notice. If consent is withheld, reasons for the refusal must be specified in the notification.
IAA's decisions must be published on its website and in the IAA Bulletin (the official journal of the IAA published in its website on a weekly basis) and includes:
Final decisions at the end of a phase I.
The decision to start a phase II investigation.
Final decisions at the end of the investigation.
Any information obtained in the process of enforcing competition law (Article 14(3), Competition Act and Article 12, Presidential Decree no. 217 of 30 April 1998):
Can only be used for the purpose for which it was requested.
Is covered by Italian official secrets legislation.
Cannot be divulged, not even to government departments and authorities (except in respect of reporting obligations under relevant criminal laws and co-operating with European institutions).
Confidentiality on request
A notifying party wishing to withhold or limit access to the procedure files by third parties to safeguard the confidentiality or secrecy of information supplied through the notification and during the proceedings must submit a specific request to the IAA. The request must contain both:
Details of the documents or parts of the documents in respect of which the request for denial of access is made.
The reasons for the request.
The same procedure applies in respect of information the party wishes to withhold from public disclosure.
In determining requests, the IAA must balance the following issues:
The interests of the parties in maintaining confidentiality.
The information the IAA needs to mention in its decision on the transaction, in order to both:
clarify the reasoning underpinning the decision; and
allow interested parties a right to challenge the final decision (see Question 12).
Rights of third parties
Third parties can make representations within five days from the date of publication by the Italian Competition Authority (IAA) on its website of the fact of a notification (see Question 5, Publicity).
Third parties representing public or private interests that might be directly, immediately and currently damaged by the subject matter of the investigation, or by any measures adopted as a result of it, can participate in the proceedings. They must submit reasoned requests to intervene within ten days of the date of publication of the notice of commencement of the investigatory phase. Third parties admitted to the proceedings can produce all of the following written:
Third parties admitted to the proceedings can access any non-confidential documents in the IAA's file.
Third parties who have triggered or contributed to the opening of a phase II investigation and have been notified of its beginning, have the right to be heard by, questioned by and question, the Investigative Unit and the Board of Commissioners of the IAA.
The relevant test is the dominance test. To decide whether to clear (conditionally or unconditionally) or prohibit a concentration, the Italian Competition Authority (IAA) must evaluate whether the transaction will create or strengthen a dominant position with the effect of eliminating or significantly reducing competition on a lasting basis.
Although the Competition Act has not adopted the "significant impediment to effective competition" (SIEC) test used at EU level, some of the IAA's decisions have clearly seen the test being taken into account.
Remedies, penalties and appeal
If the Italian Competition Authority (IAA) considers that the proposed concentration raises competition concerns, it can still authorise the transaction subject to certain conditions being imposed. In particular, the IAA can do either or both of the following:
Accept commitments proposed by the parties to remove its concerns (Article 18(2), Competition Act).
Prescribe necessary measures to prevent the concentration resulting in the creation or strengthening of a dominant position on the domestic market with the effect of eliminating or significantly restricting competition on a lasting basis (Article 6(2), Competition Act).
Commitments and measures can only be proposed during the course of a phase II investigation. They can either be:
Structural. This includes the dismissal of either:
participating interests in another undertaking;
Behavioural. This might include, for example:
accepting an obligation to supply competitors with essential raw materials;
providing access to infrastructures;
dissolving personal links with (even potentially) competing entities.
Failure to notify correctly
The Italian Competition Authority (IAA) can impose a fine of up to 1% of the previous fiscal year's turnover on any undertaking which fails to notify. If the IAA considers that the non-notified transaction eliminates or significantly reduces competition, fines for implementation after prohibition can also apply (see below, Implementation before approval or after prohibition). For breach of remedies or commitments, see below, Failure to observe.
Implementation before approval or after prohibition
The IAA can impose administrative fines on undertakings implementing a prohibited concentration, of 1% to 10% of the turnover of the business forming the object of the concentration (Article 19(1), Competition Act).
Since there is no obligation to suspend a notified transaction pending an IAA evaluation process, fines cannot be imposed on undertakings completing the concentration before clearance is granted. The Competition Act does not expressly provide for a specific fine where the parties infringe an order of the IAA to prevent completion during a phase II investigation (see Question 3). Since there has not yet been a decision on this issue, it is unclear what powers to fine the IAA has in such circumstances.
Some legal commentators have suggested that a concentration completed in breach of the law will be null and void.
Failure to observe
In the case of a failure to observe either commitments voluntarily proposed by the parties or imposed by the IAA (see Question 10), the IAA can impose fines ranging from 1% to 10% of the turnover of the business forming the object of the concentration.
Rights of appeal
Decisions of the Italian Competition Authority (IAA) can be appealed by the notifying parties before the regional Administrative Court of the Lazio Region (Tar Lazio), which has the power to annul decisions on points of law. Appeals must be notified to the IAA within 60 days from the time the appealing party was notified of the IAA's decision. The filing of an appeal with the regional Administrative Court does not in itself suspend the enforceability of the decision, although the appellant can file a petition for its interim suspension.
The regional Administrative Court's decision can be appealed before the Supreme Administrative Court (Consiglio di Stato), within 30 days of the date the appealing party was notified of the decision or, in the absence of such notification, within three months of its publication.
Third party rights of appeal
Third parties, for example, competitors, (associations of) consumers, (foreclosed or discriminated) suppliers and distributors, alleging anti-competitive harms, and having a qualified and specific interest to act can appeal IAA decisions under the same procedure as the parties to the decision (see above, Rights of appeal and Procedure).
Automatic clearance of restrictive provisions
The Italian Competition Authority (IAA) follows the principle laid down by the Commission's Notice on restrictions directly related and necessary to concentrations (OJ 2008 C95/1). Accordingly, provisions satisfying the requirements of that Notice can be considered as ancillary to the transaction and automatically cleared, but this is not a mandatory requirement for the IAA. Such restrictions include non-compete obligations:
Imposed on the vendor.
Not exceeding two years (or three years, if both goodwill and know-how are transferred) duration.
Limited to the products forming the economic activity of the business transferred.
Limited to the territories where products were offered before transfer.
Provisions not satisfying the requirements of the Commission's Notice will not be covered by the clearance decision and remain subject to a review by the IAA under the rules and procedures relating to restrictive agreements.
Regulation of specific industries
Concentrations in the banking sector are subject to both (Article 20(5), Competition Act):
Prior notification to the Italian Competition Authority (IAA) provided that relevant thresholds are met.
The scrutiny of the Bank of Italy (which assesses the prudential and good governance framework of the undertakings that are party to the proposed concentration).
Both authorities must conclude their respective review processes and make a final decision on the merger within 60 days of filing.
At a request from the Bank of Italy, the IAA can clear a concentration between banks, even if it creates or strengthens a dominant position, in the interests of the stability of one or more of the undertakings involved. The IAA cannot permit restrictions to competition that are not strictly necessary to achieve the goal pursued. For the calculation of the turnover of banks, see Question 2, Thresholds.
For concentrations involving insurance companies, the IAA makes a decision after the (non-binding) opinion of the Insurance Supervisory Authority (Istituto per la Vigilanza sulle Assicurazioni) (IVASS), which must be issued within 30 days of receiving the relevant documentation from the IAA (article 20(4), Competition Act). If the opinion is not issued within 30 days, the IAA can make its decision without waiting for the IVASS's opinion. In practice, the IAA's phase I decisions are adopted within 60 days of the notification (since the time limits for the IAA to adopt its decision are suspended until the IVASS provides its opinion).
For the calculation of the turnover of insurance companies, see Question 2, Thresholds.
In the case of concentrations involving the telecommunications sector, the IAA must adopt its decision after having considered the (non-binding) opinion of the Telecommunications Authority (Autorità per le garanzie nelle telecomunicazioni) (AGCOM), which must be issued within 30 days of receiving the relevant documentation from the IAA. If the opinion is not issued within 30 days, the IAA must adopt its decision without waiting any longer for the opinion to be issued.
All concentrations concerning the integrated media sector (Sistema Integrato delle Comunicazioni (SIC)) (which includes undertakings with an interest in at least one of the following sectors: TV, newspapers and publishing (including online), radio, sponsorships, cinema and advertising), must be notified to the Authority which exercises regulatory powers (Article 14, Law No. 112/2004). A concentration must still be filed as a separate notification with the IAA.
Prior notification is required for any concentration leading to an undertaking holding (directly or indirectly), a market share larger than 25% of the turnover from film distribution and, at the same time, more than 25% of the operating movie theatres in any one of the 12 main towns (Rome, Milan, Turin, Genoa, Padua, Bologna, Florence, Naples, Bari, Catania, Cagliari and Ancona) within the indicated film distribution zones (Article 26, Legislative Decree No. 28/2004).
Full-function joint ventures are analysed under the rules relating to concentrations (see Question 2, Triggering events). However, if the joint venture has as its principal object or result the co-ordination of behaviour of independent undertakings, it will not amount to a concentration and will be assessed under the rules on restrictive agreements.
Proposals for reform
Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) (IAA)
Description. Official website of the IAA, regularly updated and containing:
General and organisation information (also in English).
Relevant laws and regulation (some also in English).
Forms and notices (in Italian only).
Press releases and decisions (also in English) (as well as an internal search engine).
The regulatory authority
Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) (IAA)
Outline structure. The IAA decision-making body originally comprised five IAA Commissioners (including the Chairman). A reform of the composition of all independent authorities, effective from 22 December 2011, has reduced the number of the Commissioners to three (including the Chairman). However, this reform does not apply to the Commissioners currently in charge (four).
Responsibilities. The IAA is responsible for investigating potential breaches of competition law and analysing concentrations. The most relevant IAA units are the Directorate General for Competition and the Directorate General for Consumer Protection (both with several sub-units dealing with specific industries).
The IAA can also submit reports to Parliament and Government and provide them with consultancy services. Further, the IAA now has the power to request that the Administrative Tribunal annul general administrative measures, regulations or resolutions adopted by public bodies which it considers in breach of competition law (Article 36, Law Decree no. 201/2011).
Procedure for obtaining documents. The IAA may, at any stage during an investigation, request undertakings, entities and individuals to supply any information in their possession and exhibit any documents of relevance to the investigation.