On 17th October 2012, the Italian Competition Authority (“ICA”) opened an in-depth investigation into two separate construction companies: Salini Group which was composed of Salini S.p.A. (“Salini”), and Salini Costruzioni S.p.A. (“Salini Costruzioni”) as well as Impregilo S.p.A. (“Impregilo”).
Impregilo, Salini and Salini Costruzioni are specialists in the worldwide construction market.
On 4th October 2012, the companies entered into a strategic agreement (the “Agreement”) whereby they agreed to put in place a specific procedure to be followed in case they should be required to make an invitation to tender.
They could act as a sole economic entity or act separately when making bids in a tender. In the present instance, they avoided acting separately to compete with one another for the same tender.
At first sight, such an Agreement could raise serious issues about its compatibility with European Union competition rules and specifically with Article 101 TFEU. In fact, the Agreement would fall within the provision that impedes undertakings to allocate markets and customers.
Nonetheless, on 7th February 2013, Salini launched a tender offer to acquire Impregilo and at end of the tender offer Salini obtained 92,08% of the shares. In light of the above, the ICA held that the Agreement should be intended as the first part of a procedure that was finalised by the acquisition of Impregilo by Salini. Therefore, after the acquisition, the ICA found that the Agreement should be regarded as an agreement between undertakings that belonged to the same group of companies, so that it cannot be assessed from an competition law perspective.
The ICA thus focused more on the economic independence rather than the legal independence of the companies and stated that two undertakings in order to reach an anti-competitive agreement have to be able to decide their commercial behaviour independently.
In essence, the ICA’s pragmatic decision concludes that to find an agreement anti-competitive it is necessary that the undertakings involved are actual economic competitors in the relevant market and not companies with a common owner.