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Trends and climate
How would you describe the current merger control climate, including any trends in particular industry sectors?
In 2016 and 2017 the Italian Competition Authority (ICA) opened five and three merger proceedings, respectively, having examined 52 notifications in 2016 and 64 in 2017. Of the three merger proceedings in 2017, the ICA in one case amended the remedies previously adopted (C11982C - Enrico Preziosi-Artsana/Newco-Bimbo Store), while in the other two it authorised the mergers subject to remedies (C12075 -Gruppo Editoriale L'Espresso/Italiana Editrice and C12113 - Italcementi/Cementir Italia). In both cases the remedies consisted of divestiture of certain activities and assets in specific geographic areas.
For 2016, the two most significant investigations concerned the media sector, while other merger investigations concerned banking, gas supply and consumer products.
At the time of writing, in 2018 the ICA has opened and closed three investigations – one in the pet food market (C12139-Noah 2/Mondial Pet Distribution, addressed by structural remedies), one dealing with energy distribution (C12125 - 2I Rete Gas/Nedgia, addressed by structural and behavioural remedies) and one on cosmetics distribution (C12109 - Profumerie Douglas/La Gardenia Beauty-Limoni, addressed by structural remedies).
Are there are any proposals to reform or amend the existing merger control regime?
The thresholds were revised in August 2017.
Legislation, triggers and thresholds
What legislation applies to the control of mergers?
Law 287/1990, in particular Articles 5 to 7 and 16 to 19, contains the rules on control of concentrations and joint ventures. Other procedural rules are contained in Presidential Decree 217/1998. In addition, Decree Law 201/2011 prohibits the so-called interlocking directorates in the banking, insurance and financial services sectors, making it illegal for individuals to sit on the board of more than one corporate body in competing undertakings in any of these sectors. Since the merger notification form requires the merging parties to fill in a section on interlocking directorates, merger control in the above-mentioned sectors can also be used as a means for spotting potential infringements of this law.
Finally, when undertakings entrusted with the operation of services of general economic interest, or operating under a statutory monopoly, wish to operate in markets other than those of their current activity, they must do so through a separate company. The incorporation of such new companies, or the acquisition of a controlling interest in companies operating in new markets, requires notification to the Italian Competition Authority (ICA) irrespective of turnover. Failure to comply with this obligation triggers a penalty under Article 15 of Law 287/90
What is the relevant authority?
The ICA is the authority acting as both an investigative and decision-making body.
According to Article 20(4) of Law 287/90, in the case of operations involving insurers, measures can be adopted by the ICA only after hearing the opinion of the Istituto per la Vigilanza sulle Assicurazioni to be issued within 30 days from receipt of the documents on which the measure is based.
According to Article 20(5) of Law 287/90, in the case of mergers involving banks, the ICA has to take a decision within 60 days of the submission date. The ICA will assess whether the concentration gives rise to any antitrust concerns, and the Bank of Italy, in line with its financial supervisory role, will assess the transaction under prudential rules in a parallel proceeding also lasting 60 days.
Furthermore, the ICA may, at the request of the Bank of Italy, authorise a merger involving banks or banking groups which creates or strengthens a dominant position, in the interests of the stability of one or more parties involved. The authorisation may not, however, permit any restrictions to competition which are not strictly necessary to achieve the purposes therein indicated (Articles 20(5-bis and 5-ter of Law 287/90).
With regard to communications, the law setting up the Autorità per le Garanzie nelle Comunicazioni (AGCOM, the communications regulator (Law 249/1997), requires that before issuing a decision on any merger (or agreement) in the telecoms, broadcasting and media sector the ICA must request a non-binding opinion from AGCOM. In addition, AGCOM must be notified of transfers of ownership of undertakings engaging in radio and television broadcasting within 15 days of their execution. The notion of “transfer of ownership” includes every act, regardless of its form, leading to the acquisition of control or dominant influence on an undertaking. Failure to do so may result in a fine.
The regulation also requires ex ante notification of concentrations and agreements involving undertakings operating in the Integrated Communication System (ICS) which includes the press, publishing, television and radio broadcasting, cinema, and outdoor advertising. If operations involving undertakings active in the ICS also entail a transfer of ownership, only one notification is required (for details, see Decision 368/14/CONS of 17 July 2014, Regulation on the procedure for the authorisation of ownership transfers in the broadcasting sector and on the procedures under Article 45 of Legislative Decree 177/2005).
Under what circumstances is a transaction caught by the legislation?
The law applies to concentrations. A concentration occurs where:
- two or more undertakings merge;
- an undertaking or a person already controlling an undertaking acquires sole or joint control over the whole or parts of another undertaking; or
- two or more undertakings form a concentrative joint venture through the establishment of a new company.
The following types of transaction do not constitute a concentration:
- acquisition of equity holdings for purely financial purposes (Article 5(2), Law 287/1990);
- any transaction leading to the creation of a cooperative joint venture (Article 5(3), Law 287/1990);
- Intra-group transactions (ie, those occurring between undertakings that are not independent);
- transactions involving companies not engaged in any economic activities; and
- operations not producing economic effects on the Italian markets (see below).
Do thresholds apply to determine when a transaction is caught by the legislation?
Until the adoption of the annual competition act in August 2017, Article 16(1) of Law 287/1990 required prior notification of all mergers and acquisitions involving undertakings:
- whose aggregate turnover in Italy exceeds €499 million (as revised on 14 March 2017);
- and when the aggregate turnover in Italy of the undertaking to be acquired exceeds €50 million (as revised on 14 March 2017).
The thresholds have been revised in August 2017 and Article 16(1) now envisages the following thresholds:
- a combined aggregate domestic turnover of all the undertakings concerned exceeding €492 million; and
- an aggregate turnover in Italy of at least two of the undertakings concerned exceeding €30 million.
In practice, the second threshold has been lowered but at least two of the undertakings concerned must meet such threshold. This is likely to increase the number of notifications.
Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?
Parties may approach the ICA during the phase prior to the formal notification of acquisitions and mergers, to discuss any problems.
Parties intending to use this procedure may submit an informal communication to the ICA at least 15 days before the date on which they intend to file formal notification, preferably containing the following information:
- the identity of the parties to the acquisition or merger;
- a short description of the acquisition or merger procedures;
- an indication of the relevant markets;
- the shares of the parties on these markets; and
- whether the operation must be notified to the authorities in any other country.
In the latter case, the parties are requested to specify:
- whether the information supplied in that phase can be the subject of an exchange of information with the competent authorities in order to evaluate operation in the other member states;
- whether the information on operation is to be considered public, requiring in the contrary case authorisation to divulge same information to the other competent authorities; and
- whether the likely timing of notification to the other competent authorities.
The issues raised in the informal document relating to the preparation of subsequent notification will be examined jointly with the ICA as and when agreed with the parties. Where necessary, the ICA may acquire further information in this prior phase. The phase prior to formal merger or acquisition notification, relating particularly to the contents of the informal document, will be strictly confidential.
When submitting the informal document, the parties must take note of the fact that the deadline for the ICA to adopt a formal decision on the proposed transaction would start running as from formal notification of the transaction using the appropriate form, accompanied by all the necessary supporting information.
Are foreign-to-foreign mergers caught by the regime? Is a ‘local impact’ test applicable under the legislation?
Transactions involving foreign-registered undertakings which do not have at the time of the operation, and did not have during the previous three years, directly or indirectly, a turnover in Italy, do not need to be notified following the general rules on the notification thresholds. These operations are, however, subject to notification whenever, following the concentration, an undertaking begins doing business on the Italian market.
In addition, the creation of joint ventures and the mergers in which at least one of the parties to the operation is foreign-registered need not be notified if the foreign party does not have at the time of the operation, and did not have during the previous three years, any turnover in Italy. These operations are, however, subject to notification whenever, following the merger or acquisition, the new entity will start operating an economic activity on the Italian market.
What types of joint venture are caught by the legislation?
The incorporation of a jointly controlled undertaking or the acquisition of joint control over a previously existing undertaking will give rise to a ‘concentrative joint venture’. This will be subject to merger control regime provided that:
- the joint venture is a full-function joint venture; and
- the joint venture’s main object or effect is not the coordination of the competitive behaviour of the parent companies.
In order to assess whether a joint venture is concentrative or cooperative, the ICA still applies the 1994 European Commission notice on the distinction between cooperative and concentrative joint ventures. Accordingly, full-function joint ventures are treated as cooperative and appraised under the rules on agreements between undertakings (and not under the merger control rules) if, after the transaction, both parents will remain actual or potential competitors in the same geographical and product market as the joint venture, or in a market that is upstream or downstream or neighbouring with respect to that of the joint venture, if certain conditions are met (see, for a recent example, the ICA decision in C12069 – Admiral Entertainment-Lottomatica Holding/Newco 26355/2017).
Full-function, concentrative joint ventures will be treated as concentrations. As such, they must be notified to the ICA for appraisal under the merger rules.
Is the notification process voluntary or mandatory?
Notification of concentrations that meet the relevant turnover thresholds is mandatory.
What timing requirements apply when filing a notification?
As a rule, a concentration is deemed to have taken place with the acquisition of the ability to substantially influence the target undertaking’s economic behaviour. The concentration must be notified before it is carried out, after the parties have reached an agreement on the essential aspects of the operation, so as to allow the Italian Competition Authority (ICA) to fully appraise the proposed operation.
- in case of a merger, the operation must be notified before the merger deed is drafted;
- in case of acquisition of control of an undertaking, whenever this is done by means of purchase of equities or shares in a company, the prior notification obligation is deemed to have been complied with where the full effectiveness of the deeds establishing acquisition of control is made conditional on the ICA’s approval;
- in case of creation of a new joint venture, the operation must be notified before the memorandum of incorporation is filed with the Register of Companies.
A national public takeover bid that may give rise, if completed, to a notifiable concentration must be submitted to the ICA at the same time of filing with the Italian financial regulator.
Can a merger be implemented before clearance is obtained?
There is no standstill obligation (ie, an obligation to suspend the transaction after filing but prior to clearance), although in practice many parties to a transaction make clearance by the ICA a condition of closing, particularly if the transaction is a complex one. However, the ICA, when opening Phase II, can order the parties to suspend the implementation of the concentration until the investigation is concluded. A takeover bid that has been notified to the ICA may not be suspended provided that the acquirer does not exercise any voting rights conferred by the securities in question.
What guidance is available from the authorities?
As explained above, parties may approach the ICA during the phase prior to the formal notification of acquisitions and mergers, to discuss any problems. In addition, quite detailed information on merger procedures is available, also in English, on the ICA’s website.
What fees are payable to the authority for filing a notification?
There are no filing fees.
What form should the notification take? What content is required?
Notification may be made in the full form or the short form (both available on the ICA’s website).
The ICA requires full-form notification for concentrations between independent undertakings subject to the prior notification obligation where:
- two or more parties to the concentration operate in the same affected market and the concentration will lead to a combined market share of 25% or more; or
- one of the parties to the concentration will have, after the concentration, a market share of 40% or more, provided that at least one other party operates in an upstream or downstream market.
In any event, full-form notification is not required where the market share of the undertaking being acquired or merged is less than 1%.
Full-form notification must only be made in relation to the affected markets in respect of which at least one of the aforementioned conditions is met, as well as in relation to the relevant upstream and downstream market in the event that the condition the second bullet point above is met.
Short-form notification is permitted for all concentrations subject to a prior notification obligation, for which full-form notification is not required. The ICA nevertheless reserves the right to request the information required under full-form notification whenever the ICA considers that the short-form notification does not permit an adequate assessment of the proposed operation. In this case, the time limit for examining the merger does not start running until the full-form notification is received.
The short form version of the notification requires information listed under the following headings:
- Form A: Background information.
- Form B: Details of the concentration.
- Form C: Participating parties.
- Form D: Financial and personal links.
- Form E: Affected markets.
- Form F: Supporting documents.
The full-form notification forms are the same as the short-form notification forms, with some differences in Form E and an additional set of information, Form G, on general conditions on the affected markets.
Is there a pre-notification process before formal notification, and if so, what does this involve?
Can a merger be implemented before clearance is obtained?
There is no standstill obligation (ie, an obligation to suspend the transaction after filing but before clearance), although in practice many parties to a transaction make clearance by the ICA a condition of closing, particularly if the transaction is a complex one. However, the ICA, when opening Phase II proceedings, can order the parties to suspend implementation of the concentration until the investigation has been concluded. A takeover bid that has been notified to the ICA may not be suspended provided that the acquirer exercises no voting rights conferred by the securities in question.
What guidance is available from the authorities?
As explained above, parties may approach the ICA during the phase before the formal notification of a merger or acquisition to discuss any issues. In addition, detailed information on merger procedures is available (in Italian and English) on the ICA’s website.
What fees are payable to the authority for filing a notification?
There are no filing fees.
What provisions apply regarding publicity and confidentiality?
In some cases, the ICA may consider it necessary to consult widely with the market in relation to formally notified mergers and acquisitions. In those cases the ICA published (unless parties otherwise require) a notice on its website with a brief description of the proposed transaction and the markets, inviting comments from third parties.
The non-confidential version of Phase I and II decisions of the ICA is published on the ICA website and in the ICA Bulletin.
Parties can, by a motivated request, ask the ICA to treat certain documents, or parts of documents, as confidential. In the absence of such request, the ICA is not legally bound to carry out a confidentiality assessment in relation to the information submitted. However, under the principle established by the Italian Supreme Administrative Court in Judgment 6481/2010 it is possible that the ICA can by its own motion consider certain information provided by the parties as confidential. Although the judgment concerned documents relating to a leniency application, it is reasonable to argue that it may also apply to other types of documents, such as notification forms and other documents filed by the parties with the ICA in the context of merger control proceedings.
Are there any penalties for failing to notify a merger?
When companies fail, intentionally or negligently, to notify a concentration within the set time frame the ICA can impose a fine of up to 1% of the responsible undertaking's turnover in the preceding year (Article 19(2), Law 287/1990). However, the ICA usually imposes limited fines to undertakings that inform them spontaneously of such failure.
Procedure and test
What procedures are followed by the authority? What is the timetable for the merger investigation?
Upon receipt of a complete notification, the Italian Competition Authority (ICA) must make a decision within 30 calendar days. Within this time limit (Phase I), it can adopt one of the following decisions:
- A decision of inapplicability). This would be for one of the following reasons:
- The transaction does not fall within the scope of Law 287/1990 because it does not amount to a concentration within the meaning of Article 5;
- The concentration has an EU dimension and falls within the exclusive jurisdiction of the European Commission; or
- The concentration does not meet the Italian turnover thresholds.
- A clearance decision. In this case, the ICA considers that no further investigation is required because it is already clear that the notified transaction raises competition concerns. No remedies can be imposed by the ICA in relation to a Phase I decision. The ICA can however subject a Phase I clearance to remedies offered by the parties.
- A decision to open an in-depth investigation (Phase II) the notified transaction appears to raise competition concerns and may possibly be prohibited, the ICA opens a Phase II investigation. In this case, a final decision must be adopted within an additional 45 calendar days. If the parties fail to supply information and data in their possession that were requested by the ICA, this deadline can be extended by an additional 30 calendar days.
At the end of the Phase II investigation, the ICA may:
- clear the transaction; or
- prohibit the merger; or
- subject the approval of the transaction to the adoption of specific remedies, either offered by the parties or imposed by the ICA.
What obligations are imposed on the parties during the process?
In Phase II, the ICA has, by virtue of Articles 16(4) and 14 of Law 287/90, the same investigative powers as for antitrust proceedings, including the power to fine anyone who refuses or fails to provide the information or exhibit the documents requested by the ICA without justification, of an amount up to €25,821, or up to €51,643 in the event that they submit untruthful information or documents, in addition to any other penalties provided by current legislation.
What role can third parties play in the process?
In Phase I, third parties are only entitled to submit observations concerning the proposed concentration following the publication of the relevant notice or to file by their own initiative submissions with the ICA, expressing their position on the concentration.
In phase II, third parties can file a reasoned application to participate within 10 days of publication of the decision to open the investigation. Interested third parties include undertakings, individuals, consumer associations, competitors or any other entity whose interests may suffer immediate, direct and actual harm from the proposed concentration or by any measures adopted by the ICA as a result of the investigation. Admitted third parties are entitled to submit observations, documents and opinions and shall be granted access to the ICA file. They also have a right to be heard by the ICA officials and, on reasoned request, to participate in the final oral hearing.
What is the substantive test applied by the authority?
The substantive test consists of examining whether a concentration creates or reinforces a dominant position on the Italian market so as to eliminate or restricting competition appreciably and on a lasting basis (Article 6(1), Law 287/1990).
In practice, the criteria for evaluating a merger are in line with the current EU substantive test, and include, among others, the choice suppliers and users have, access to supplies or outlets structure of the relevant markets existence of possible barriers to entry, supply and demand trends.
The ICA will also evaluate any substantive efficiency claims brought by the parties, to determine whether they are likely to counterbalance possible restrictive effects of the merger.
Does the legislation allow carve-out agreements in order to avoid delaying the global closing?
There is no provision allowing carve-out agreements.
Is a special substantive test applied for joint ventures?
There is no special substantive test in place for joint ventures. As noted above, cooperative joint ventures (including, under Italian law, joint ventures where both parents remains active in the same market of the joint venture) are assessed under Article 2 of Law 287/90 as anti-competitive agreements.
What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
The Italian Competition Authority (ICA) may block a merger or clear it subject to conditions that can either be offered by the parties or imposed by the ICA itself (or both). If conditions are not complied with, or a blocked transaction is nevertheless implemented, or parties do not restore the conditions of competition once a transaction has already taken place, the parties may be subject to a fine ranging between 1% and 10% of their turnover of the business forming the object of the transaction.
Upon a motivated request by the parties, the ICA can amend remedies previously imposed/accepted in its clearance decision (for a recent example, see Decision 26132/2016 in Case C-8660B).
Is there a right of appeal?
Pursuant to Article 33 (1) of Law 287/90, the Regional Administrative Court of Lazio has exclusive jurisdiction over appeals of Italian Competition Authority (ICA) from ICA decisions.
The decision of the ICA can be appealed before such court within 60 days from its notification. The judgment of first instance can be appealed before the Supreme Administrative Court within 30 days from its notification or three months from its publication. Exceptionally, the judgments of the Supreme Administrative Court may be appealed before the Italian Supreme Court only based on jurisdictional and competence issues or for revocation.
Do third parties have a right of appeal?
In Judgment 3865/04, the Supreme Administrative Court has held that persons other than the addressees of the ICA decision may be entitled to appeal such a decision provided that they are directly and individually affected by it.
What is the time limit for any appeal?
The decision of the ICA can be appealed before such court within 60 days from its notification.