In brief

The new annual law for competition No. 118/2022 was approved by the Italian Parliament on 5 August 2022 and entered into force on 27 August.

In addition to a set of measures aimed at removing regulatory barriers in various sectors of the economy, the law introduces some major features in the antitrust field.


Contents

  1. Merger control
  2. Abuse of economic dependence and digital platforms (effective as of 31 October 2022)
  3. New investigative powers to the Authority and introduction of a settlement procedure

Merger control

The current (cumulative) turnover thresholds continue to apply: 1. the combined turnover that all the undertakings concerned achieve in Italy exceeds EUR 517 million, and 2. the turnover that each of at least two of the undertakings concerned achieves in Italy exceeds EUR 31 million.

In addition, should the ICA consider that a transaction of which it became aware may create potential risks for competition in the national market or a relevant part of it, it may require the undertakings concerned to notify the transaction within 30 days, if:

  1. Only one of the two turnover thresholds currently in force in Italy is exceeded.
  2. The combined worldwide turnover achieved by all the undertakings concerned exceeds EUR 5 billion.

And

No more than six months have expired from the closing of the transaction.

The new regime does not apply to transactions that closed before 27 August 2022, whereas it applies to new transactions as well as ongoing transactions that have not yet closed.

The law requires the ICA to adopt specific procedural rules for the application of the new regime, which in any case is already in force.

Abuse of economic dependence and digital platforms (effective as of 31 October 2022)

The law strengthens the ICA's powers against abuses of economic dependence in cases involving digital platforms. In particular, in the event that an undertaking uses intermediation services provided by a digital platform that plays a decisive role in reaching end users or suppliers, also in terms of network effects or data availability, there will be a presumption that the undertaking is dependent on the platform in practice, it will be easier for the Authority (and for complainants) to ascribe abusive conduct to platforms.

The law also provides a non-exhaustive list of conduct that can be considered abusive: providing insufficient information or data regarding the scope or quality of the service offered, demanding undue unilateral benefits not justified by the nature or content of the activity performed, adopting practices that inhibit or hinder the use of a different provider for the same service, requesting undue unilateral services not justified by the nature or content of the activity performed, adopting practices that inhibit or hinder the use of a different supplier for the same service, including the application of unilateral conditions or additional costs not indicated in the agreements or existing licenses.

New investigative powers to the Authority and introduction of a settlement procedure

The ICA may request undertakings to provide information or documents at any time if it intends to investigate a potential abuse or anti-competitive agreement, as well as a merger.

The law also introduces the possibility for undertakings involved in proceedings, which potentially may be subject to fines, to apply for a new settlement procedure with the ICA.

The ICA has not yet published details of how the new powers and new settlement procedure will work - we anticipate that it will issue guidelines in due course.