On 5 August 2013 the Italian Competition Authority (‘ICA’) published a communication aiming to clarify how to determine the second threshold under the amended Article 16, paragraph 1, of Law no. 287/90 in the case of newly set-up joint ventures and mergers (the “Communication”).
Article 16, paragraph 1, of Italian Law No. 287/90 - as amended by the Decree-Law No. 1/2012, converted into Law No. 27/2012 -, states that a concentration shall be notified to the ICA if: (i) the Italian aggregate turnover of all undertakings concerned exceeds Euro 482 million, and (ii) the Italian turnover of the target exceeds Euro 48 million. Starting from 1 January 2013, these turnover thresholds are no longer alternative but cumulative.
With the Communication the ICA has clarified the meaning of “national turnover realised by the undertaking whose acquisition is expected" (the second turnover threshold referred to in Article 16, paragraph 1, Law No 287/90), in particular in cases of the establishment of new joint ventures and mergers.
As regards new joint ventures, the ICA considers that the turnover of any contributions made by the undertakings acquiring the joint control shall be taken into account. As a consequence, these contributions shall be deduced from the revenues of the undertakings acquiring the joint control. Contributions deferred over time, which do not exceed the threshold individually, shall be considered as part of a single operation if they are put in place within two years of the establishment of the new joint venture. Undertakings involved shall be responsible for assessing whether, as a result of subsequent contributions, the second threshold under Article 16, paragraph 1, Law No 287/90 is exceeded, and consequently need to notify the operation to the ICA.
As regards mergers, the following distinction is to be taken into consideration in order to verify if the second threshold set out in Article 16, paragraph 1, Law No 287/90 has been exceeded:
- in the case of a merger (‘fusione per incorporazione’), the turnover of the merged company shall be taken into account;
- in case of a merger of equals (‘fusione in senso stretto’), the turnover of what the merging companies contribute for the purposes of the merger shall be taken into account (this threshold shall correspond to the total turnovers of the undertakings concerned).