Italy: Merger control

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding merger control law in Italy.

This Q&A is part of the global guide to Merger Control. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/merger-control

  1. Overview

    Italian merger control rules are set out by Law no. 287 of 10 October 1990 and its implementing regulations. The relevant enforcement authority is the Italian Competition Authority (ICA). The rules of procedure governing merger control cases before the ICA are set out in Presidential Decree no. 217 of 30 April 1998.

    Under Italian merger control rules, the jurisdictional test consist in a set of cumulative turnover thresholds based on the parties’ turnover in Italy (see question 2.1). If a transaction meets both such turnover thresholds, it shall be notified to the ICA prior to its implementation (see question 3.2).

    Notifying parties may close the transaction before the clearance decision of the ICA. However, very often, the parties agree that completion of a transaction subject to mandatory notification, shall be conditional upon the clearance decision of the ICA, for the reasons outlined in question 2.2 below.

    The ICA shall decide whether to clear the transaction or start an in-depth investigation within 30 calendar days (15 calendar days in case of public takeovers) of receipt of the notification (phase I). If an in-depth investigation is started (phase II), the ICA shall issues its final decision within 45 calendar days. Such deadline can be extended of additional 30 calendar days, if the parties fail to provide the information requested by the ICA, which are in their disposal.

    The final decision of the ICA can either (i) fully clear the transaction; (ii) clear it subject to remedies; or (iii) prohibit it. ICA’s decisions, are published on the ICA’s website (see question 6.5), omitting only confidential information (see question 6.7). ICA’s decisions can be appealed before the Regional Administrative Court of Rome (TAR Lazio-Roma). The judgments of the TAR Lazio-Roma can be appealed before the Italian Supreme Administrative Court (Council of State) (see question 9).

  2. Is mandatory notification compulsory or voluntary?

    Pre-merger filing is mandatory.

  3. Is there a prohibition on completion or closing prior to clearance by the relevant authority? Are there possibilities for derogation or carve out?

    Under Italian merger control rules, if a transaction meets the thresholds for mandatory notification, the filing shall be submitted to the ICA prior to completion. However, there is no standstill obligation. Therefore, in principle, the parties can implement a notified transaction before the final decision of the ICA.

    In practice, very often, the parties agree that the clearance decision of the ICA shall constitute a contractual condition of closing a transaction subject to mandatory notification. This is because, in case of a prohibition decision, the ICA may force the parties to restore effective competition and remove any anticompetitive effects produced by the transaction, if the latter has already been implemented.

    If the ICA decides to start a phase II investigation, it can order the suspension of the transaction until the final decision (e.g., in case C11524 - UNIPOL GRUPPO FINANZIARIO/UNIPOL ASSICURAZIONI-PREMAFIN FINANZIARIA-FONDIARIA SAI-MILANO ASSICURAZIONI of 26 April 2012).

    In case of takeover bids of undertakings listed on the Italian stock exchange, the purchaser can complete the transaction and acquire the shares, notwithstanding an order of suspension issued by the ICA, provided that it does not exercise the voting rights until the final decision.

    In principle, the parties do not need to carve out local completion of a transaction to avoid delaying global completion, given that, as mentioned above, under Italian merger control rules, there is no standstill obligation until the final decision of the ICA. However, in practice, carving out local completion might be an option for transactions that raise potential competition issues at local level.

  4. What are the conditions of the test for control?

    According to Italian merger control rules, a concentration arises in case of:

    • merger between two or more companies;
    • direct or indirect acquisition of sole or joint control of the whole or parts of a company;
    • creation of a full function joint venture (see question 3.1 below).

    In order to establish whether a transaction gives rise to change of control, Italian merger control rules make reference to the definition of “control” provided in Article 2359 of the Italian Civil Code as well as holding rights, contracts or any other means, which confer de jure or de facto the possibility of exercising decisive influence on an undertaking (e.g., the power to exercise more than half the voting rights; or appoint more than half the members of the supervisory or administrative board; or otherwise manage the undertakings' affairs, for instance by means of veto rights on the approval of the budget and/or the business plan).
    There are, however, a few exceptions where a concentration is not deemed to arise, notwithstanding the transaction gives rise to a change of control – i.e.:

    • the acquisition of shares with the sole purpose of resale, by banks and financial institutions, provided that they do not exercise the voting rights attached to the shares and sell them within 2 years from the acquisition;
    • the acquisition of companies, which do not engage in any business activities;
    • cooperative joint venture (see question 3.4);
    • intragroup transactions.
  5. What are the conditions on minority interest in your jurisdiction?

    Italian merger control rules apply to the acquisition of minority interests only if the transaction leads to the acquisition of sole or joint control of the target company (e.g., by virtue of a shareholders agreement providing for veto rights over strategic business decisions of the purchased company such as the approval of the budget and/or the business plan; if the remaining shares are widely dispersed).

  6. What are the jurisdictional thresholds (turnover, assets, market share and/or local presence)?

    Transactions shall be notified to the ICA when both the following thresholds (as of 14 March 2016) are met (provided that the transaction does not have a Community dimension under the EU merger control rules set out in Regulation (EC) No. 139/2004 on the control of concentrations between undertakings):

    • the combined turnover of the parties in Italy exceeds €495 million; and
    • the target’s turnover in Italy exceeds €50 million.
    • The above turnover thresholds are adjusted annually to take into account increases in the GDP deflator index.

      From 1 January 2013, the turnover thresholds have become cumulative and no longer alternative (Law Decree no. 1 of 24 January 2012, converted with amendments with Law no. 27 of March 2012).

  7. How are turnover, assets and/or market shares valued or determined for the purposes of jurisdictional thresholds?

    In order to assess whether the above jurisdictional thresholds are met, the ICA takes into account the turnover of the parties in the most recent completed financial year. As a general rule, the ICA prefers to rely on audited accounts. The calculation of turnover is net of sales taxes, discounts and rebates. Intra-group sales are disregarded.

    The turnover of each undertaking concerned should be adjusted to allow for acquisitions or disposals made since the end of the last financial year as if they had taken place on the first day of the last completed financial year. Turnover in a territory is the sales revenue from immediate customers in that territory.

    In transactions involving banks or financial institutions, the relevant turnover amounts to one-tenth of company’s total assets, excluding suspense accounts. In transactions involving insurance companies, the relevant turnover amounts to the total value of insurance collected premiums.

  8. Is there a particular exchange rate required to be used for turnover thresholds and asset values?

    Foreign currency shall be converted into euros at the average exchange rate for the year to which the amounts are allocated. In 2016, the average exchange rate between euros and US dollars was EUR1 = USD 1.1049 (source: European Central Bank).

  9. Do merger control rules apply to joint ventures (both new joint ventures and acquisitions of joint control over an existing business?

    Joint ventures fall within the scope of the Italian merger control rules if they are full function (as opposed to cooperative joint ventures, which are reviewed under Article 101 of the Treaty on the Functioning of the European Union and/or Article 2 and 4 of Law No. 287/90, which prohibit anticompetitive agreements between competitors).

    In order to assess whether a joint venture is full function, the ICA considers whether it is likely to perform, on a lasting basis, all the functions of an autonomous economic entity (e.g., because of dedicated management, access to sufficient financial resources, staff and tangible and intangible assets).

    In case of creation of a new (full function) joint venture, for the purpose of the second cumulative threshold based on the turnover of the target, the ICA takes into account the turnover related to any contribution to the joint venture made by the companies acquiring joint control. Such turnover shall not be included in the turnover of the companies acquiring joint control for the purpose of the first threshold based on the combined turnover of the parties.

    Multiple contributions deferred over time, which do not meet individually the second turnover thresholds are considered as a single concentration for merger control purposes, if they are put in place within two years from the creation of the joint venture.

  10. In relation to “foreign-to-foreign” mergers, do the jurisdictional thresholds vary?

    The ICA does not require the notification of acquisitions and mergers through incorporation involving foreign-registered undertakings which do not have at the time of the transaction, and did not have during the previous three years, directly or indirectly, a turnover in Italy. These transactions are, however, subject to mandatory notification if, following the concentration, the undertaking begins doing business on the Italian market.

    The creation of joint ventures and mergers in which at least one of the parties to the transaction is foreign-registered are not subject to mandatory notification if the foreign party does not have at the time of the transaction, and did not have during the previous three years, any turnover in Italy. These transactions are, however, subject to mandatory notification if, following the concentration, the new entity will start operating an economic activity on the Italian market.

    The cumulative thresholds mentioned in the response to question 3.2 above, are not capable of catching transactions with little or no nexus to Italy.

  11. For voluntary filing regimes (only), are there any factors not related to competition that might influence the decision as to whether or not notify?

    Not applicable.

  12. Additional information: Jurisdictional Test

    Under Law Decree no. 21 of 15 March 2012, as amended by Italian Law no. 56 of 11 May 2012, the Italian Government has the power (golden shares) to object or impose conditions in case of extraordinary transactions regarding strategic activities or assets in the communications, energy and transport sectors. Such strategic activities and assets have been identified in several Prime Minister Decrees.

  13. What is the substantive test applied by the relevant authority to assess whether or not to clear the merger, or to clear it subject to remedies?

    Under Italian merger control rules, a concentration is prohibited if it creates or strengthen a dominant position thus eliminating or reducing the competition on a lasting basis in the Italian market. In its assessment, the ICA takes into account: (i) the market position of the companies concerned and their economic and financial power; (ii) the alternatives available to suppliers and users, their access to supplies or markets; (iii) any legal or other barriers to entry; (iv) supply and demand trends for the relevant goods and services.

  14. Are non-competitive factors relevant?

    According to Article 25(1) of Law no. 287/90, if relevant national economic interests are involved, the Government can exceptionally authorize concentrations which would be otherwise prohibited. This provision was applied only in the Alitalia – Air One case of 2008. In particular, Law Decree no. 134 of 28 August 2008 converted with amendments by Law no. 166 of 27 October 2008, introduced a provision according to which “concentrations made by large companies operating in the essential public services sector in special administration, shall be exempted from the notification obligation”. Therefore the concentration was notified to the ICA and authorized with commitments.

    According to Article 25(2) of Law no. 287 of 10 October 1990, the President of the Council of Ministers has the power to prohibit the acquisition of Italian companies by foreign companies, if the Italian companies located in the buyers’ country are discriminated in their transactions with local companies.

  15. Are there different tests that apply to particular sectors?

    If the parties of a notified transaction are active in the telecom and media sector, the ICA shall inform the Italian Communication Authority for its non-binding mandatory opinion. In addition, in case of transactions regarding the media sector, the Italian Communication Authority may also block or impose conditions to the companies if media pluralism is endangered.

  16. Are ancillary restraints covered by the authority’s clearance decision?

    The clearance decision issued by the ICA covers also ancillary restrictions, directly related and necessary to the concentration, such as non-competition obligations or purchase and supply obligations imposed on the vendor. Such restrictions are assessed by the ICA following the guidance of the European Commission Notice on restrictions directly related and necessary to concentrations of 5 March 2005.

  17. For mandatory filing regimes, is there a statutory deadline for notification of the transaction?

    The concentration shall be notified to the ICA before its implementation.

  18. What is the earliest time or stage in the transaction at which a notification can be made?

    Companies can submit the filing to the ICA once they agreed on the main terms and conditions of the transaction. As an established practice, parties may submit the notification to the ICA before the signing of an agreement only if they are able to provide sufficient elements in order to show to the ICA that the main terms and conditions of the transaction will not be subject to further changes (e.g., a signed letter of intent).

  19. What is the basic timetable for the authority’s review?

    According to ICA’s communication on certain procedural aspects related to merger notification, issued on 20 June 2005, companies may start discussing the transaction with the ICA at least 15 calendar days before the submission of the notification. If a company chooses this option, it shall provide the ICA with a description of the main elements of the transaction.

    The ICA shall decide whether to clear the transaction or start an in-depth investigation within 30 calendar days (15 calendar days in case of public takeovers) of receipt of the notification (phase I). If an in-depth investigation is started (phase II), the ICA shall issues its final decision within 45 calendar days. Such deadline can be extended of additional 30 calendar days, if the parties fail to provide the information requested by the ICA, which are in their disposal.

    In the banking sector, the ICA and the Bank of Italy have a time limit of 60 business days from the request of documentation, to conduct their respective assessments concerning the acquisition of control of banks.

  20. Under what circumstances the basic timetable may be extended, reset or frozen?

    If the parties submit incomplete information, the ICA may request such information to be provided and interrupt the 30 calendar days deadline (the ICA issues a “stop the clock” letter). In practice, the ICA tries first to obtain the missing information informally (e.g., phone calls) with no interruption of the 30 calendar days deadline.

    As mentioned above, failure to file the required information in phase II may imply an extension of the standard 45 calendar days period for further 30 calendar days. The phase II investigation may also be extended by 30 calendar days when the decision on a concentration requires the opinion of the Italian Communication Authority.

  21. Are there any circumstances in which the review timetable can be shortened?

    In less complex cases, the parties may be able to receive the clearance decision a few days before the expiry of the 30 calendar days deadline.

    The notifying parties can start pre-notification talks with the ICA prior to the filing, and submit a summary of the main terms of the proposed transaction and a brief description of the markets potentially affected, at least 15 calendar days before the formal filing. In such pre-notification talks, the parties and the ICA discuss the likely effects of the proposed transaction on the relevant markets and clarify the information required in order to file a complete notifying form.

  22. Which party is responsible for submitting the filing? Who is responsible for filing in cases of acquisitions of joint control and the creation of new joint ventures?

    In case of acquisition of sole control, the party responsible for the filing is the purchaser, while in case of merger or acquisition of joint control, the responsibility lies with each party of the transaction. In this case, the parties have the possibility to jointly file, using the same form and appointing a common representative.

  23. What information is required in the filing form?

    The information required in order to fill in the notification form includes details of the parties and their activities, description and details of the transaction; information related to the markets affected by the concentration and the parties’ market shares.

    Notification shall be filed by filling in either a long form or a short form, which differ in relation to the scope of the information required. A long form shall be submitted when:

    • 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 per cent or more; and/or
    • one of the parties to the concentration will have, after the concentration, a market share of 40 per cent 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 per cent.

  24. Which supporting documents, if any, must be filed with the authority?

    The notifying parties are required to enclose to the filing form all documents related to the transaction, the balance sheets and the annual reports of the companies involved in the transaction, relating to the three financial years preceding the transaction. In addition, a power of attorney for the representative signing the filing must be included in the documentation to be provided. Concerning the language of such material, the notification must be submitted in Italian, while all the attachments (i.e. transaction documents) can be submitted in the original language. The party which notifies the transaction may indicate in the filing which information is to be treated as strictly confidential and the reason why it constitutes business secret.

  25. Is there a filing fee? If so, please specify the amount in local currency.

    From 1 January 2013 no filing fee is due for transactions notified to the ICA.

    The filing fee envisaged under the previous system for notified transaction, was replaced since 1 January 2013, by a mandatory annual fee due by all limited liability companies based in Italy that have total revenues exceeding Euro 50 million. Such annual mandatory fee is due regardless of whether the parties enter into a transaction subject to mandatory notification. The amount of the fee is equal to 0.06‰ of the revenues set out in the latest financial statements. The fee cannot exceed EUR 300,000.

  26. Is there a public announcement that a notification has been filed?

    If the notifying parties consent, the ICA publishes a “notice of merger submission” on its website. The notice contains a short description of the parties, transaction and the economic sectors concerned by the concentration.

    The ICA's phase I decisions are published on both the ICA's weekly bulletin and the ICA's website. In case of phase II investigation, the ICA will publish on its weekly bulletin and website both its decision to start the in-depth investigation and its final decision.

  27. Does the authority seek or invite the views of third parties?

    Third parties can submit their observations to the ICA within 5 business days from the date of publication of the notice of merger submission. The ICA generally contacts customers and competitors, on its own initiative, during the market test in order to assess the potential effects of a notified transaction on competition in the relevant markets.

    The ICA’s decision to start phase II is published on its website, allowing customers and competitors representing private or public interests (e.g., trade associations and consumer organisations), to intervene in the proceeding, providing evidence that they would be directly and immediately harmed by the proposed transaction. Third parties are entitled to submit documents, including briefing papers, and can request to have access to the non-confidential version of the ICA’s case file. Furthermore, third parties can ask the ICA to be heard in a hearing.

  28. What information may be published by the authority or made available to third parties?

    The parties may indicate at the time of filing and during the proceeding which information shall be kept confidential. In particular, the parties shall state the reasons why certain information shall be considered as business secret. If the request of confidentiality is granted, the ICA will make available a non-confidential version of the decision/document.

  29. Does the authority cooperate with antitrust authorities in other jurisdictions?

    The ICA belongs to the European Competition Network (ECN), which includes the European Commission and the competition authorities of all the EU member states. The authorities cooperate with each other through the ECN by (i) informing each other of new cases and envisaged enforcement decisions; (ii) coordinating investigations; (iii) exchanging evidence and other information; and (iv) discussing issues of common interest.

    The ICA is one of the co-founders of the International Competition Network (ICN), which groups 130 competition agencies in the world. The ICN's mission statement is to advocate the adoption of superior standards and procedures in competition policy around the world, formulate proposals for procedural and substantive convergence, and seek to facilitate effective international cooperation to the benefit of member agencies, consumers and economies worldwide. Currently, the ICA is one of the co-Chairs of the Advocacy Working Group.

  30. What kind of remedies are acceptable to the authority? How often are behavioural remedies accepted in comparison with major merger control jurisdictions, such as the EU or US?

    The ICA can accept structural (such as sale or divestments of assets) or behavioural remedies. On the basis of its decisional practice, the ICA appears to have a preference for structural remedies, due to the difficulties in monitoring the implementation of behavioural remedies.
    Violation of the binding commitment contained in the final decision of the ICA might lead to the opening of an investigation by the ICA, and may result in the imposition of fines from 1 to 10 per cent of the worldwide turnover of the entity resulting from the transaction.

  31. What procedure applies in the event that remedies are required in order to secure clearance?

    If the ICA indicates that the notified transaction is likely to distort competition on the relevant market, the parties may offer remedies in order to mitigate such competition concerns. There is no deadline for the proposal and submission of remedies. However, in practice, the negotiations of the remedies begin often during the phase I of the proceeding or even before the notification.

  32. What are the penalties for failure to notify, late notification and breaches of a prohibition on closing?

    Failure to notify and late notification are punished with fines up to 1 per cent of the worldwide turnover of the notifying party (or parties) in the last financial year. On the basis of the decisional practice of the ICA, intentional failure is punished with more severe fines, whereas a spontaneous late notification is likely to receive a more favourable treatment.

  33. What are the penalties for incomplete or misleading information in the notification or in response to the authority’s questions?

    Failing or refusing to provide information requested by the ICA may be punished with fines up to € 25,823, while providing false or misleading information may be punished with fines up to € 51,645.

  34. Can the authority’s decision be appealed to a court? In particular, can third parties who are not involved in the transaction appeal the decision?

    The decisions of the ICA can be appealed before the TAR Lazio - Roma, on grounds of lack of jurisdiction or competence, violation of the law, or abuse or misuse of powers. The appeal shall be filed within 60 calendar days from the notification of the ICA’s decision. The judgment of the TAR Lazio – Roma can be appealed before the Council of State, within 60 calendar days from the notification (these terms are suspended between 1 August and 15 September of each year).

    Third parties involved in the transaction may bring an action before the relevant administrative courts for annulment of the ICA’s decision, providing evidence that they have suffered a prejudice. According to the regulation on the transparency of public institutions, third parties may request to have access to all non-confidential documentation contained in the case file of the ICA.

  35. What are the recent trends in the approach of the relevant authority to enforcement, procedure and substantive assessment?

    The number of notified transactions substantially decreased following the 2013 reform of Italian merger control rules, according to which the turnover thresholds are no longer alternative, but cumulative. The ICA reviewed 55 cases in 2016, against the 451 cases registered in 2012. The most recent cases were either fully cleared or cleared with commitments.

    For instance, in case C12023 - Arnoldo Mondadori Editore v RCS Libri of 23 March 2016 – the ICA authorized with conditions the concentration between Arnoldo Mondadori Editore and RCS Libri. In particular, Arnoldo Mondadori Editore offered to divest its publishers Marsilio and Bompiani in order to allow the entry in the market of a new player. In addition, Arnoldo Mondadori Editore waived the rights of option and preferential rights, regarding future narrative and non-fiction works, contained in the authors’ contracts.

  36. Are there any future developments or planned reforms of the merger control regime in your jurisdiction?

    In May 2014, the ICA closed a consultation (launched in February 2014) on the following proposed amendments to the Italian merger control thresholds:

    • the reduction of the current second merger control threshold;
    • the amendment to the second threshold, whereby it would refer to the turnover of each of at least two of the parties to the transaction (rather than the target’s turnover).

    The results of the public consultation were not clearly in favour of a reduction of the current second merger control threshold. Therefore, the ICA decided to continue to monitor the functioning of the current system and defer any decision on its proposed amendment.

    The ICA is also considering the opportunity of amending, in the near future, the notification procedure for transactions that clearly do not raise competition concerns, by means of a simplified notification procedure.