The antitrust department consists of eight lawyers and has considerable expertise in dealing with issues concerning the banking, pharmaceutical and healthcare, chemical, cosmetics, automotive, IT and telecommunications, air transport, mass retail and superstore sectors. The team provides general assistance on pre-notifications and notifications of concentrations between undertakings mergers, acquisitions of control and joint ventures , including contacts with the competent antitrust authorities and in-depth market evaluations. The firm represents clients in proceedings before national and European competent authorities, and before the Administrative Court, the Supreme Administrative Court, the General Court and the Court of Justice. It also advises on notifications of mergers, self-assessments of agreements and practices, the organisation of antitrust compliance programmes, training and audits, in addition to providing general advice on EU law-related matters and state aid. The procedural concerns, including those relating to merger control, are defined by Presidential Decree of 30 April Procedural Regulation. The IAA also provided the short-form and full-form templates for the notification of transactions.
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The antitrust department consists of eight lawyers and has considerable expertise in dealing with issues concerning the banking, pharmaceutical and healthcare, chemical, cosmetics, automotive, IT and telecommunications, air transport, mass retail and superstore sectors. The team provides general assistance on pre-notifications and notifications of concentrations between undertakings mergers, acquisitions of control and joint ventures , including contacts with the competent antitrust authorities and in-depth market evaluations.
The firm represents clients in proceedings before national and European competent authorities, and before the Administrative Court, the Supreme Administrative Court, the General Court and the Court of Justice.
It also advises on notifications of mergers, self-assessments of agreements and practices, the organisation of antitrust compliance programmes, training and audits, in addition to providing general advice on EU law-related matters and state aid.
The procedural concerns, including those relating to merger control, are defined by Presidential Decree of 30 April Procedural Regulation. The IAA also provided the short-form and full-form templates for the notification of transactions.
The Italian rules on merger control are significantly similar to the corresponding EU merger control rules and must be interpreted in light of the EU principles developed by the European Commission and EU Courts. These principles are automatically integrated into the Italian system Section 1 4 , the Law. The IAA also provides guidelines on pre-notification discussions and the calculation of turnover thresholds, and criteria for the determination of the filing fees, which are defined annually.
Article 20 of the Law sets out special rules for banks and insurance companies, and Law Decree No 21 of 15 March , as converted with amendments into Law No. In particular, according to these provisions, the government can impose conditions or exercise veto powers on acquisitions of shares in companies operating in these sectors by investors who are not Italian public entities or their controlled undertakings. In , the government adopted an implementing decree Decree No of 6 June that identifies the specific sectors for the purposes of applying these rules.
To benefit from this exemption, the undertaking concerned must be active in an essential public services sector, and the operation must fulfil a primary general economic interest. Moreover, specific merger control provisions that apply to the communications industries can be found in Law No. See below for further rules regarding the powers of the Bank of Italy in the banking sector. The IAA is the enforcement authority for merger control, and has both investigative and decision-making powers.
With reference to the banking sector, the operations of concentration are evaluated — independently — by the IAA and the Bank of Italy, which applies its powers in relation to the rules on sound and prudent management. At the same time, Article 20 of the Law provides for some exceptions: the Bank of Italy can ask the IAA to approve an operation that leads to a dominant position if the banks concerned have particular stability problems.
This authorisation, however, cannot go further than that which is strictly necessary. As regards the communications sector, reference should be made to Law No. Both authorities will conduct the necessary analysis as per their respective powers.
In addition, Article 25 of the Law confers a wide margin of discretion on the IAA where relevant interests to the national economy arise. More specifically, upon a proposal of the Ministry of the Economic Development, the Council of Ministers may set forth some general criteria to allow the IAA to clear concentrations that would otherwise be forbidden, provided that the operations do not eliminate competition in the market.
The Prime Minister can also — following a proposal from the Ministry of the Economic Development — prohibit a concentration involving undertakings or entities from countries that do not protect the independence of undertakings or entities under provisions that have an equivalent effect to those provided by the Law, or countries that apply discriminatory provisions or impose clauses that have similar effects in relation to acquisitions by Italian undertakings or entities.
Notification to the IAA is compulsory if the transaction meets the jurisdictional thresholds see 2. In these terms, even transactions with little significant or even no effects on the Italian market must be notified to the IAA, which will assess the impact on competition. According to Article In general, a concentration arises whenever a transaction involves a change in control on a lasting basis see 2. Article 5 of the Law expressly provides for some transactions that do not give rise to a concentration, as follows:.
Article 7 of the Law provides a broad definition of control, which includes both direct and indirect control as well as sole and joint control.
More specifically, control is acquired:. Acquisitions of minority shareholdings are caught only when such operations lead to a change in the structure of control for example, when the minority shareholder holds veto rights over strategic decisions of the given undertaking. Although there are no sector-specific thresholds, the Law provides special rules for the method of calculation of turnover for banks and insurance companies.
For banks and financial institutions, turnover is equal to the value of one-tenth of their total assets memorandum accounts excluded , while for insurance companies turnover is equal to the value of premiums collected Article 16, par.
These thresholds are based on nationwide revenues realised by the parties involved in a transaction. In particular:. Should the target be a branch of business, the relevant turnover is generally estimated having regard to the costs required to perform its activity. According to the Merger Instructions, for foreign-registered undertakings, the amounts in foreign currency must be converted into euro at the average exchange rate of the relevant financial year.
The first threshold aggregate Italian turnover of all the undertakings concerned requires consideration of the following data:. Moreover, the turnover of the seller does not have to be taken into account unless the seller retains joint control it is thus an entity acquiring joint control. With reference to the second threshold, the recent modification of the legislative framework provided by Law No. More specifically, the aggregate domestic turnover of each of at least two of the undertakings concerned must exceed EUR30 million.
Concerning the Italian turnover of the target undertaking, the IAA has given the following important directions in its notice dated 5 August The mandatory notification to the IAA is not required despite attainment of the above thresholds if a transaction does not produce effects on the Italian market, as follows:.
However, prior notification is required if the foreign-registered undertaking s concerned will start performing an economic activity in Italy following the transaction. The sole explicit reference to market shares — set out in the film distribution sector — has recently been eliminated by Law No.
Market shares held by the companies involved in the concentration are considered in the assessment of the impact of the transaction on the market see 3. To evaluate whether a joint venture is a full-function joint venture, the criteria set forth in the Commission Jurisdictional Notice apply. Should a joint venture not operate as an autonomous economic entity so that the co-ordination effects prevail over the structural effects, the transaction constituting a joint venture shall be evaluated under the rules on restrictive agreements and practices Article 2 of the Law.
If the transaction does not meet the jurisdictional thresholds, the IAA does not have the power to open an investigation. If the entities responsible fail to notify a concentration that meets the turnover thresholds, the IAA may impose fines.
In this regard, it is necessary for the Authority to start its investigation within five years of the transaction see 2. Additionally, where the parties fail to notify and the IAA is informed of the concentration by any other means, the IAA shall commence investigations within 30 days.
However, pursuant to Article 17, paragraph 1, of the Law, when opening a phase two investigation see below , the IAA may order the undertakings not to implement the transaction until its final decision. In the implementation of a prohibited transaction or a transaction in breach of obligations imposed by a conditional clearance decision, the IAA may do the following:.
For this reason, it is advisable not to implement a transaction during the review process, when competition concerns are likely to be raised by the IAA. For the quantification of fines, the IAA takes into account the same criteria for failure to notify ie, remedial action, the personality and economic conditions of the perpetrator, the duration of the infringement — see 2. The Italian framework does not provide for a standstill period, so there are no specific penalties if the parties implement the transaction before the clearance.
In any case, as defined under 2. A transaction shall be notified prior to its implementation — ie, before the acquisition of the effective ability to exercise a decisive influence over the behaviour of the target — but after the parties have agreed on the essential aspects of the transaction. Indeed, the IAA must be aware of the essential elements of the operation in order to develop its assessment.
A notification can be made prior to signing a definitive agreement, provided that the parties have agreed on the essential aspects of the transaction — for instance, in the context of a signed framework agreement or a signed letter of intent. According to Article 10, par. The maximum contribution threshold for each enterprise should not exceed one hundred times the minimum amount. The contribution for amounted to 0. The companies must pay the contribution directly to the Authority by 31 July of each year through the procedure set forth by the IAA in its own resolution.
Generally, all undertakings acquiring control are responsible for filing, which can also be made by the company that directly or indirectly controls the acquirer. There are two different kinds of notification: the long-form and the short-form. When the transaction does not meet the above conditions in the affected market s , the companies will submit a short-form notification.
As specified by the Merger Instructions, the Authority can require the information provided in a long-form notification when the information provided by the short-form does not allow for an appropriate evaluation of the transaction. The two notifications require different information, which has to be collected following the respective forms. The long-form notification requires more details on the affected markets.
For example, in addition to the elements required for the short-form, in the long-form notification it is necessary to insert information about the structure of supply and demand, market entry, clients, trade marks, co-operation agreements, and research and development agreements. The notification form must be sent with other documents that are relative to the concentration, including:. In addition to the fundamental information, parties may attach the evaluation about the affected markets, reports, analyses, studies and surveys prepared for the shareholders or the directors, to provide aid to the IAA.
As regards the relevant documents attached to the notification, the Authority usually accepts the English version; there are no specific rules about the use of other languages.
The notification form shall be undersigned by the legal representative of the notifying party, who expressly certifies that the information submitted is complete and accurate.
If the IAA deems the information reported in the notification and related documents or annexes to be seriously inaccurate, incomplete or untruthful, it will require the parties to integrate the filing.
According to Article 16 7 of the Law, the IAA may commence the investigation beyond the time limits provided by this section when the information notified by the undertakings is seriously inaccurate, incomplete or untrue. In these terms, the period of time provided for the opening of an investigation starts from the date when the IAA receives the complete notification, with all the necessary elements. When the operation requires the long-form notification, the completion of a short-form one may be evaluated as incomplete.
Given that Article 14 of the Law sets out the general rule for proceedings before the IAA, fines of up to EUR51, may be imposed on a party that provides false information, while fines of up to EUR25, may be imposed on a party that fails or refuses to provide information during the investigation. The review process is divided into two phases that could be anticipated by pre-notification discussions with the IAA.
In this preliminary and informal dialogue, the parties may submit an informal document, which will be treated as strictly confidential, at least 15 days before the date of the formal notification see 3. The document must include the following information:. First, the IAA can decide on the inapplicability of the Law. The IAA could decide to clear the transaction without opening an in-depth investigation if the operation evaluation does not give rise to competition issues.
In these terms, the operation can proceed because it does not give rise to serious doubts about the respect of merger rules. Otherwise, the Authority can decide to open an in-depth investigation when it deems it possible that the concentration may lead to a prohibition decision. The time limit of 30 days is not applied when the information notified by the undertakings is seriously inaccurate, incomplete or untrue, according to Article 16 7 of the Law, in which case the time limit applies from the date when the IAA received the notification, with all the necessary elements.
The IAA can decide on clearance, on clearance with necessary measures to avoid anti-competitive outcomes, or on the prohibition of the transaction. Moreover, this period may be extended during the investigation for a further period of no more than 30 days where the undertakings fail to supply the information and the data in their possession upon request.
When the IAA proceeds with the second phase of the investigation, the overall time for clearance is normally 75 days from the notification of the operation. However, the Authority often extends this period, uses its power to stop the time limit of the first phase, or takes advantage of the 30 extra days of phase two. When the concentration involves undertakings that are active in the communications or insurance sectors, the Law provides for co-ordination with the competent authorities: AGCOM and IVASS, respectively.
In this case, time limits are suspended until the Authorities return their opinion. The suspension also ends if the opinion is not returned within the period provided by the law 30 days. The phase prior to the formal notification of mergers is regulated by the Procedural Notice, which was adopted in response to the Authority's experience that showed the need of the parties to consult the Authority before formally notifying a merger or acquisition.
This informal procedure is seemingly being encouraged by the IAA to avoid further requests for information to supplement the original formal notification and the consequent interruption of the period provided by section 16 4 of the Law for completing its assessment.
Merger Control 2019
Scegli fonte: Costituzione Preleggi Codice civile Disp. Codice contr. IVA Disp. Statuto contribuente Reg.