In a Note issued on September 7, the Italian Competition Authority provides some clarifications on the new regime.
Some doubts for “foreign-to-foreign” joint ventures
The new turnover thresholds
The Law No. 124/2017 (the so-called Annual Law for Market and Competition), published on the Official Gazette of 14 August 2017, has amended the turnover thresholds set out by Art. 16.1 of the Italian Competition Law, establishing that a concentration shall be notified prior to its implementation to the Italian Competition Authority (“ICA”), where the following two conditions are – cumulatively – met:
- the aggregate Italian turnover of the undertakings concerned exceeds € 492 million; and
- the Italian turnover of each of at least two undertakings concerned exceeds € 30 million.
The thresholds are adjusted each year to reflect any increase of the GDP deflator index.
Entry into force of the new regime
The new thresholds have entered into force on 29 August 2017 (i.e., 15 days after the publication of Law No. 124/2017 on the Official Gazette). As clarified by ICA with a communication dated 7 September 2017, the new thresholds shall apply to any concentration with closing taking place after 29 August 2017 (even if the signing occurred prior to this date).
Changes compared to the previous regime
Changes compared to the previous regime are as follows:
- slight reduction – from € 499 million to € 492 million – of the first threshold;
- new definition of the second threshold: so far, it was required that the Italian turnover of the target company exceeded € 50 million. According to the new provision, at least two undertakings concerned must achieve an Italian turnover of € 30 million each.
The above-mentioned changes should entail an increase of the concentrations subject to prior notification to the ICA.
A preliminary remark
The above-mentioned communication of the ICA has clarified that the notion of concerned undertaking corresponds to that set forth at the European level (see Art. 1 of the Regulation No. 139/2004 and §§ 129-153 of the Jurisdictional Notice). This raises a significant interpretative doubt: a transaction should be notified even where two undertakings having an aggregate Italian turnover that is above the first threshold, and each one an Italian turnover exceeding € 30 million, acquire joint control of an undertaking, which does not have any Italian turnover? In this regard, it would be desirable a further clarification by the ICA.