The legislation governing merger control in Italy is Law No. 287/1990 (the Law).  It introduced national competition law in Italy and established the Autorità Garante della Concorrenza e del Mercato (the ICA), an independent agency that enforces competition law.

The Law was recently amended by two key legislative developments (see also question 36):

• Law No. 118 of 5 August 2022 (the 2021 Annual Competition Law (2021 ACL)), which entered into force on 27 August 2022 and amended the Law, further aligning it to EU standards by: (i) introducing the so-called ‘significant impediment to effective competition’ (SIEC) test (see question 13); (ii) including co-operative joint ventures (JVs) in the list of concentrations subject to national merger control rules (see question 9); and (iii) amending the criteria for calculating the relevant turnover in relation to banks and financial institutions (see question 7). The 2021 ACL introduced another significant amendment, namely, the possibility for the ICA to review below-threshold concentrations (see questions 2 and 6); and
• Law No. 214 of 30 December 2023 (the 2022 Annual Competition Law (2022 ACL)), which entered into force on 31 December 2023 and amended the Law by extending the maximum duration of the so-called ‘Phase II’ from 45 to 90 calendar days (see question 19).

The Italian merger control regime imposes a prior notification obligation for concentrations that meet certain Italian turnover thresholds, which are updated by the ICA annually, and remain below the thresholds that trigger the Commission’s jurisdiction (see question 6).

The substantive merger control provisions are set out in Articles 5 to 7 of the Law.  These provisions now largely mirror Articles 2 and 3 of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the EU Merger Regulation).  Moreover, pursuant to Article 1(4) of the Law, the ICA has to interpret and apply Italian substantive merger control provisions in a way that is fully consistent with EU antitrust principles. As a result, ICA decisions usually refer to EU case law, decision-making practice and related guidelines.

From a procedural point of view, Articles 16 to 19 of the Law contain the main provisions on the obligation to notify concentrations, the proceedings before the ICA, and the fines that may be imposed by the ICA (in particular, for failure to notify a concentration prior to its implementation, for implementation of a concentration prohibited by the ICA, or for failure to comply with measures upon which the ICA’s clearance was made conditional, on which see question 32).  Presidential Decree No. 217/1998 (Decree 217/1998) supplements these basic procedural provisions with more detailed rules governing proceedings before the ICA, including the ICA’s powers of inquiry and the parties’ right to access the file and participate in the proceedings.  Lastly, Law No. 689/81 concerning administrative procedures in Italy may apply, in so far as it is compatible with the Law, to fines imposed by the ICA.

The Law generally applies to all sectors of the economy without exceptions.  It also provides for rules applicable to certain sectors only.  In particular, the Law sets out rules on calculating the relevant turnover and involving regulatory authorities in the review process for concentrations involving banks, financial institutions and insurance companies (see question 7).

Merger notifications must be filed with the ICA using a model form provided by the ICA itself (the Form).  The most recent version of the Form, published on the ICA’s website, was adopted in February 2024 and applies to all transactions notified from 1 May 2024 (see question 23).

The Law provides for a system of mandatory notification of transactions which: (i) amount to an ‘operation of concentration’ within the meaning of Article 5 (see question 4); and (ii) involve undertakings whose Italian turnover exceeds the thresholds set out in Article 16 (see question 6).

In addition, the 2021 ACL introduced Article 16(1-bis) of the Law, which empowers the ICA to request the notification of below-threshold concentrations when three cumulative conditions are met (see question 6).  In the case of below-threshold concentrations, pursuant to the ICA’s Notice of 27 February 2024 (the Notice on below-threshold concentrations), which amended the 2022 version, where the undertakings concerned consider that a transaction falls within the scope of Article 16(1-bis) of the Law, they may also inform the ICA voluntarily.  Voluntary communications should take place before the transaction is finalised, provided that the parties have already reached agreement on the essential elements of the transaction, so as to enable the ICA to carry out a full assessment.  The Notice on below-threshold concentrations provides details on the information to be disclosed to the ICA. At the latest, the communication must be received by the ICA within two months of completion of the transaction.  Following the submission of the voluntary communication, the ICA has 60 days to request a formal notification. The concentration will then need to be notified within 30 days (which can be extended in exceptional circumstances and upon reasoned request by the undertaking(s) concerned).

Finally, pursuant to Article 8(2)ter of the Law, undertakings entrusted with the operation of services of general economic interest or of a statutory monopoly must communicate to the ICA the incorporation of, or acquisition of control over, undertakings active on different markets regardless of any notification thresholds.  This communication is for information purposes only.

The Law does not impose a ‘standstill’ obligation on the notifying parties, which are free to complete the transaction at any time following the formal submission of the merger filing to the ICA, hence without waiting for the ICA’s approval.  However, most parties choose not to implement the transactions pending the ICA’s review.  This is particularly advisable where the transaction may raise competitive concerns because the ICA may, in cases of prohibition, order the restoration of the competitive conditions prior to the completion of the concentration, including the divestiture of the acquired business.

That said, pursuant to Article 17(1) of the Law, if the ICA opens an in-depth investigation (the so-called Phase II), it may order the undertakings concerned not to proceed with the concentration until Phase II is concluded (however, pursuant to Article 17(2) of the Law, if the notified concentration is implemented by means of a public tender offer, the ICA cannot prevent the acquiring undertaking from purchasing the target’s shares, provided that the buyer does not exercise the voting rights attached to the acquired shares).  So far the ICA has applied Article 17(1) of the Law in only three cases, where it justified the suspension order on the basis that completion of the notified transaction would have had restrictive effects and irreparably altered the competitive relationships between the undertakings concerned.

Pursuant to Article 5 of the Law, the following types of transactions are notifiable to the ICA:

• mergers between two or more previously independent undertakings;
• acquisitions, directly or indirectly, of control over the whole or parts of one or more undertakings; and
• creation of a JV (see question 9).

Certain transactions do not constitute a concentration within the meaning of the Law.  Those transactions include:

• acquisitions of purely financial interests (Article 5(2) of the Law);
• transactions between undertakings that are not independent (intra-group transactions); and
• transactions involving companies not engaged in economic activities.

The notion of control under the Law is consistent with that under EU merger control rules.  ‘Control’ is broadly defined as the ability to exercise decisive influence over the whole or parts of an undertaking that is based on rights, contracts or any other means (see Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, paragraph 16).

Sole control is normally acquired when a person or entity acquires the majority of the voting rights of an undertaking.  In contrast, in the absence of other circumstances, an acquisition that does not include a majority of the voting rights does not generally confer control over an undertaking even if it involves the acquisition of a majority of the share capital.  A concentration exists even if control is acquired over only part of an undertaking.  According to the ICA, ‘part of an undertaking’ is any set of assets that, as part of the organisation of an undertaking, produces turnover.  These assets may include goodwill, contracts, technology, patents, trademarks or inventory.  For instance, the ICA has held that the acquisition of brands or licenses to which turnover can be clearly attributed is a concentration under the merger control rules.  Indeed, the ICA has expanded the notion of concentration so as to include even the acquisition of assets that have never produced turnover, but will do so following the acquisition.

ICA decisions also provide numerous examples of cases in which the lease of a business has been considered a concentration.  In the ICA’s view, a leasing contract may result in a concentration even if the parties have not entered into an additional agreement for the subsequent purchase of the leased business and the contract is of limited duration (see, for example, Case C4826 – Artisan Shoes/Novaron, where the ICA held that a 1-year lease (renewable for an additional year) gave the lessee control over the leased business).

In certain cases, the acquisition of a minority interest may involve the acquisition of sole or joint control over a part, or the whole, of an undertaking, and therefore trigger the obligation to notify the transaction to the ICA.  ICA practice generally follows EU principles and decision-making practice also on these matters.

In particular, a minority shareholder may acquire legal or de facto sole control over an undertaking.  Control is acquired on a legal basis where corporate governance rules and/or contractual arrangements confer upon the minority shareholder specific rights to determine the target undertaking’s strategic commercial behaviour.  This is the case, for example, when the minority shareholder has the power to appoint more than half of the supervisory or administrative board members.

Control may also be acquired when a minority shareholder has the right to manage the activities of the undertaking and to determine its business policy because of the particular organisational structure of the undertaking.

In exceptional circumstances, a minority shareholder may acquire decisive influence over an undertaking simply because it is able to veto certain strategic decisions of the undertaking (so-called ‘negative’ sole control).  This is the case where a shareholders’ agreement requires a super-majority for certain strategic decisions (including the appointment of senior management, and the approval of budgets and business plans), thereby conferring a veto right on only one minority shareholder, which therefore acquires sole control.

A minority shareholder may acquire de facto sole control when it is highly likely that the shareholder will achieve a majority at the shareholders’ meeting given the wide dispersal of the remaining share capital.  In this case, it is necessary to assess the likelihood of the minority shareholder obtaining a stable majority of the votes at the shareholders’ meeting, including an assessment of the attendance of other shareholders at the shareholders’ meeting in the future and the position of the other shareholders.  In exceptional circumstances, economic dependence may also result in de facto sole control due to a situation where the commercial and structural relationship between the shareholder and the undertaking concerned allows the former to exercise decisive influence over the latter.

Furthermore, an option to purchase or convert shares can confer sole control on minority shareholders, if, under legally binding agreements, the option is reasonably expected to be exercised in the near future.  In the absence of such agreements, the option to purchase may, together with other elements, lead to a finding of de facto sole control.  A put option may give the minority shareholder joint control over an undertaking, if the exercise of the option would be so onerous and disruptive that it is a powerful instrument of pressure on or threat to the majority shareholder.

A minority shareholder may also acquire joint control if it has rights which enable it to veto one or more essential decisions in relation to the strategic commercial behaviour of the JV (for example, the approval of the budget or business plan, the appointment of senior management, or the decision to engage in major investments), which go beyond the veto rights normally granted to minority shareholders in order to protect their financial interests as investors.  These veto rights may be set out in the bylaws of the controlled undertaking or, more frequently, are conferred by shareholders’ agreements, and operate by means of specific quorum required at the shareholders’ meeting, by the board of directors or by the supervisory board.

Lastly, minority shareholders may control an undertaking if they jointly hold the majority of the voting rights and they agree to act together (so-called ‘pooling agreements’), or if they set up a jointly controlled holding company to which they transfer their rights.  In exceptional cases, joint control has been found to occur on a de facto basis where two or more shareholders together hold a majority of the voting rights and share strong common interests so that it is highly likely that they will act together to exercise their rights in relation to the controlled undertaking.

Pursuant to Article 16(1) of the Law, transactions not falling under the EU Merger Regulation must be notified to the ICA when:

1. the concerned undertakings have an aggregate turnover in Italy that exceeds €567 million; and
2. the aggregate domestic turnover of each of at least two of the undertakings concerned exceeds €35 million.

The turnover thresholds are updated annually based on the increase in the gross domestic product deflator index (last updated on 11 March 2024), and the relevant resolution is published in the Bulletin of the ICA after the increase in the index is officially announced.

Moreover, pursuant to Article 16(1-bis) of the Law, the ICA can request the notification of below-threshold concentrations when three cumulative conditions are met:

1. one of the above two turnover thresholds provided for in Article 16(1) of the Law is exceeded, or the combined aggregate worldwide turnover of the undertakings concerned exceeds €5 billion;
2. the concentration raises competition concerns in the national market, or in a substantial part of it, also taking into account possible detrimental effects on the development of small enterprises with innovative strategies; and
3. no more than six months have elapsed since the completion of the transaction.

If these cumulative conditions are met, the ICA can request any of the undertakings concerned to notify the below-threshold concentration within 30 days of its request (which can be extended in exceptional circumstances and upon reasoned request by the undertaking(s) concerned).  The Notice on below-threshold concentrations provides guidance regarding, among other things, its interpretation of condition (ii) above and certain procedural aspects.

The Law does not provide for different thresholds for particular sectors.

Only turnover thresholds are established by the Law, except in the case of below-threshold concentrations in relation to which competition concerns are also relevant (see question 6).

In assessing the turnover thresholds, the ICA examines the turnover of the ‘undertakings concerned’.  Broadly speaking, the undertakings concerned are those entities whose turnover is brought together by the concentration.  Given that control may be exercised jointly, there may be more than one undertaking concerned on the acquiring side.  In calculating the turnover, account is taken of: (і) the total sales of the group to which the acquiror(s) (or merging entities) belong; and (іі) the total sales of the target of the acquisition (і.е., the acquired undertaking and its subsidiaries, or the acquired assets).  The seller of a business is not an undertaking concerned (unless it retains joint control with another undertaking).  In general, the ICA systematically and explicitly refers to the Commission’s Notice on the concept of undertakings concerned.

Aggregate Italian turnover refers to the revenue arising from sales of products and services to customers located in Italy in the last fiscal year minus returns, rebates and taxes (such as VAT) directly related to the sale of products or the performance of services.  In the case of undertakings located outside the Euro-zone, the turnover expressed in foreign currency has to be converted into euros by using the average exchange rate of the fiscal year to which the turnover is attributed.

In the case of newly created JVs, the turnover to be taken into account is that generated by any contributions made to it by the undertakings acquiring joint control (the amount of which should be deducted from the parent undertakings’ turnover).

More generally, calculations to assess whether the thresholds set out in Article 16(1) above are met should be conducted in a manner consistent with the principles set out in the Commission Notice on calculation of turnover.

The Law also provides for special rules for calculating the turnover of banks and insurance companies.  Following the entry into force of the 2021 ACL, turnover of banks and financial institutions is calculated as at the EU level, and includes the following income items: (i) interest income and similar income; (ii) income from shares and other variable yield securities, income from participating interests, and income from shares in affiliated undertakings; (iii) commissions receivable and net profit on financial operations; and (iv) other operating income.  For insurance companies, the turnover is calculated based on the value of gross premiums, comprising all amounts received and receivable in respect of insurance contracts issued by or on behalf of the insurance undertakings, including also outgoing reinsurance premiums.

In the case of undertakings established outside the Euro-zone, the amounts in foreign currency must be converted into euros by using the average exchange rate of the relevant financial year. While the Law does not specify the source that must be used, it is customary to use the statistics of the European Central Bank.

Pursuant to Article 5(1)(c) of the Law, a joint venture amounts to a ‘concentration’ in all cases where it performs, on a lasting basis, all the functions of an autonomous economic entity (i.e. where it is a ‘full-function’ JV).  The setting up of a JV may amount to a notifiable concentration in the case of:

• creation of a new undertaking jointly controlled by two or more parent undertakings;
• change from sole to joint control of an existing undertaking; and
• sale by one parent undertaking of its joint control interest to a third party.

Under the new rules introduced by the 2021 ACL, the Italian merger control regime now applies to all full-function JVs, regardless of their concentrative or cooperative nature, in line with EU principles.

Where the creation of a concentrative JV has as its object or effect the coordination of the behaviour of independent undertakings, such coordination must be assessed according to the rules on restrictive agreements, but always within the context of the merger control procedure.  In this assessment, the ICA must take into account:

• whether, after the transaction, both parents will remain actual or potential competitors in the same geographical and product market as the JV, or in a market that is upstream or downstream or a neighbouring market with respect to that of the JV; and
• the possibility for the undertakings concerned, through their coordination resulting directly from the creation of the JV, to impede effective competition in relation to a substantial part of the products and services concerned.

Two or more transactions between the same persons or undertakings over a two-year period, even if notified separately, are to be considered as one single concentration, finalised on the date of the most recent transaction.

Under the Italian merger control rules, foreign-to-foreign transactions need to be notified to the ICA whenever they exceed the jurisdictional thresholds set out in the Law.  The local nexus between a foreign-to-foreign transaction and the Italian territory is satisfied whenever the transaction exceeds the two turnover thresholds.  In other words, the presence of a local nexus is inferred from the fact that at least two of the undertakings concerned generated revenues in Italy in the last fiscal year.

On the other hand, in the case of below-threshold concentrations, given that it is enough that only one of the two Italian turnover thresholds in the Law is exceeded or that the combined aggregate worldwide turnover of the undertakings concerned exceeds €5 billion, the local nexus may derive exclusively from the circumstance that the concentration raises competition concerns in the national market, or in a substantial part of it.

N/A

Pursuant to Article 6(1) of the Law, as recently amended by the 2021 ACL, the ICA must evaluate whether concentrations ‘significantly impede effective competition in the national market or a relevant part thereof, in particular due to the creation or strengthening of a dominant position’ (the SIEC test).

As a result of this amendment, national merger control rules, in line with EU rules, provide that mergers can be prohibited or subject to conditions even when they do not lead to the emergence or strengthening of a dominant position, if they nevertheless have significant distortive effects on competition (particularly in oligopolistic markets).

The ICA’s substantive assessment must take into account a number of factors including: (i) the structure of all the markets concerned and actual or potential competition; (ii) the market position of the undertakings concerned and their economic and financial power; (iii) the possibilities of substitution available to suppliers and users and their conditions of access to suppliers or markets; (iv) the existence in law or in fact of barriers to entry; (v) the trend of supply and demand for the relevant goods and services; (vi) the interests of intermediate and final consumers; and (vii) the development of technical and economic progress, provided that it benefits the consumer and does not constitute an impediment to competition.

The substantive merger control rules set out in the Law generally apply without exception to all sectors of the economy.

The purpose of Italian merger control rules is to ensure that there is a system of undistorted competition.  Accordingly, the ICA has consistently rejected suggestions that its assessment should take into account public interest elements such as industrial, social or employment considerations and has firmly resisted attempts to politicise the application of merger control rules.  Notwithstanding the reference in Article 6(1) of the Law to the competitive position of the domestic industry, we are not aware of any instance in which the ICA has referred to this factor when approving a given transaction.

Yes.  In the notification, the parties must indicate restraints which they consider to be directly related to, and necessary for, the concentration’s successful implementation (so-called ‘ancillary restraints’).  The ICA’s assessment of the notified transaction will contain an analysis of these clauses.  Clearance decisions will also cover restraints that the ICA itself considers to be ancillary.  In assessing whether a given restraint is ancillary to the notified concentration, the ICA follows the principles set out in the Commission Notice on restrictions directly related and necessary to concentrations.

The notification must take place before the concentration is implemented.

The earliest stage at which a notification can be made is after the parties have agreed on all essential elements of the concentration (e.g., through a memorandum of understanding), so as to enable the ICA to make a full assessment of the transaction.

Pursuant to the ICA’s Notice on certain procedural aspects of concentrations under Law No. 287/90 of 20 June 2005 (as amended on 27 December 2010), the parties to a notifiable transaction may, at least 15 calendar days before the date on which the notification is due, submit to the ICA an informal memorandum briefly describing: (i) the parties; (ii) the transaction to be notified; (iii) the markets concerned; (iv) the position of the parties in those markets; and (v) any further notification obligations in relation to other competition authorities.

In practice, the parties often directly submit a draft notification form instead of a memorandum.  However, for non-complex transactions pre-notification contacts are not strictly necessary or expected by the ICA.

After completing – usually within about 10 days – an initial assessment of the preliminary documents received (the memorandum or draft notification), the ICA’s officials will contact the representative of the notifying parties to obtain further information or to arrange meetings in more complex cases.  For sensitive transactions, pre-notification contacts may last several weeks, with multiple meetings and exchanges of documents and drafts (as they are supplemented in the light of the clarifications requested).

The Italian merger control investigation procedure consists of two phases, the second of which may or may not take place.

The pre-examination phase (Phase I) begins upon receipt of a complete notification and must be completed within 30 calendar days (which may be extended by information requests, see the question below).  This period is reduced to 15 calendar days in the case of public takeover bids, which must be notified to the ICA at the same time as they are notified to the National Commission for Companies and the Stock Exchange (in addition, if the ICA decides to open the investigation within 15 calendar days of receipt of the notification, it must simultaneously notify the latter).  The period is increased to 60 calendar days for concentrations concerning banks.

If the ICA considers that, on the basis of the evidence gathered, the transaction may be prohibited under Article 6 of the Law, it must order the opening of an in-depth investigation (Phase II).  Unless extended, Phase II must be completed within 90 calendar days (which may be extended by a further 30 calendar days in the case of information requests, see the question below).

If the ICA sends a formal request for information to the notifying parties, it will interrupt the 30-day deadline for Phase I.  Indeed, pursuant to Article 5(3) of Decree No. 217/1998, if the ICA finds that the notification is seriously incomplete, inaccurate or untrue, it will inform the notifying parties and request that they supply additional information.  The clock will restart from the date of the ICA’s receipt of the additional information requested (i.e. from when the ICA considers the notification to be complete).

Similarly, the 30-day period will be interrupted if the parties amend the terms of the originally notified transaction, or if they offer commitments during Phase I in order to address the ICA’s competition concerns.  In both cases, the ICA will consider that the parties have notified a new transaction, and the 30-day period will start to run anew (see also question 31 below on remedies).

During Phase II, the 90-day period can only be extended by up to 30 calendar days if the notifying parties fail to provide the information requested by the ICA, or if they offer commitments or propose amendments to the originally notified transaction.

No, although, as mentioned in question 19, there is a shorter review period for Phase I (15 days) in the case of public takeover bids.

The parties responsible for submitting the filing vary according to the nature of the transaction.  In particular, in the case of acquisition of sole control, the notifying party is the undertaking acquiring control.  In the case of a merger, acquiring joint control, or establishing a full-function JV, each and every undertaking acquiring control or participating in the merger is responsible for making the filing.

Merger notifications must be filed with the ICA using the Form (see question 1).  The most recent version of the Form, published on the ICA’s website, was adopted in February 2024 and applies to all transactions notified from 1 May 2024.  As of this date, there is no longer a distinction between long-form and short-form notifications.  There is only one Form, with certain sections to be completed only if the transaction gives rise to ‘affected’ markets.

The Form describes the information required for the purposes of the notification and has ten sections.  The notifying parties are required to provide all of the information requested, following the structure and the numbering indicated in the Form itself, as well as supporting documents (on which see question 24).

As a minimum, the Form requires the notifying party(-ies) concerned to provide: (i) general information about the transaction and the parties involved; (ii) information on financial or personal links; and (iii) information regarding potentially affected market(s), including at least possible market definitions and (depending on whether and to what extent the transaction gives rise to affected markets and substantive concerns) market shares, relationships with suppliers, product differentiation, innovation, research and development activities, and efficiency claims.

The notifying parties concerned must file, together with the Form, the following supporting documents: (i) documents bringing about the transaction (or, in the case of a takeover offer, a copy of the offering prospectus); (ii) annual reports and financial statements; (iii) documentation used for the purpose of the notification (e.g., documents supporting the market definitions relied on by the parties or the data provided to complete the Form); and (iv) when at least one affected market is identified, internal documents (e.g., minutes of the meetings of corporate bodies or officers at which the transaction was discussed, analyses, reports, surveys, and presentations).

No.

Following a complete notification, with the consent of the notifying parties, the ICA will publish on its website a short notice (avviso al mercato) reproducing in full the information provided by the notifying parties in Section I of the Form on ‘Summary Information for Publication of the Notice’.

After publication of the short notice regarding a notified transaction, interested third parties can submit observations to the ICA within 5 working days setting out their position on the concentration, which the ICA can take into account for the purposes of its assessment.  However, third parties have no right to participate in a Phase I investigation.

If the ICA decides to open an in-depth investigation with regard to the notified transaction, interested third parties may file a reasoned application to participate in the proceedings within 10 days of the publication of the ICA’s decision in the ICA’s weekly bulletin.  Interested third parties may normally include undertakings (including the target), individuals, consumer associations, competitors or other bodies whose interests might be directly and immediately harmed by the notified transaction or by any measures adopted as a result of the proceedings.

After third parties have been admitted to participate in the Phase II proceedings, they have a right to access the ICA’s case file (with the exception of confidential information) and file written submissions, documents, arguments and opinions.  In addition, they may be heard by the ICA’s officials and, upon reasoned request, be allowed to participate in the final oral hearing in the proceedings, if such a hearing is requested by the notifying parties.

In addition, the ICA can make written requests for information and documents from undertakings and any other legal or natural person.  Until 2022, the ICA was entitled to make such requests for information only after formally opening the Phase II investigation.  However, since 2022, the ICA can make such requests ‘at any moment’, even before the decision to formally open the investigation.  Requests must: (i) provide the addressee with a reasonable period of time in which to reply, also considering the complexity of the information requested (in any event, this period cannot exceed 60 days, unless it is extended following a reasoned request); (ii) state the legal basis on which they are made and be proportionate; and (iii) not oblige the addressee to admit any infringement of competition law.

The ICA may also hear third parties to gather their position on the notified concentration and evidence which may be useful for its assessment.  Hearing minutes must be signed by ICA officials and representatives of the undertakings concerned at the end of each hearing.  Hearings may be recorded on tape for the sole purpose of drafting the minutes.

The ICA publishes on its website a short notice (avviso al mercato) reproducing in full the information provided by the notifying parties in Section I of the Form on ‘Summary Information for Publication of the Notice’.  In addition, the non-confidential version of decisions to open an in-depth investigation and of all decisions completing the ICA’s review of a notification (clearance decisions, either conditional or unconditional, or prohibition decisions) are published in the ICA’s weekly bulletin.

Interested third parties participating in the proceedings (see the question above) may also be given access to the non-confidential parts of the ICA’s file.

The ICA is part of the EU Merger Working Group (the MWG), together with the Commission, the national competition authorities of the other EU Member States (NCAs), and the observers from the authorities of the European Economic Area.  The MWG was established in 2010 with a view to fostering increased consistency, convergence, and co-operation among EU jurisdictions.  In 2011, the MWG adopted guidelines on best practices on co-operation between EU national competition authorities in merger review, which aim to promote co-operation and the sharing of information between NCAs for mergers that do not qualify for review by the Commission itself but that require multiple national filings.  Under these best practices, the NCAs encourage parties to waive confidentiality in relation to mergers that are subject to co-operation (where appropriate).

Moreover, the ICA is a member of the International Competition Network (the ICN), an international body comprised of several NCAs worldwide.  The ICN seeks to provide NCAs with a specialised (albeit informal) venue for maintaining regular contact and addressing practical competition issues.  The ICN has published the following documents: (i) Guiding Principles for Merger Notification and Review; (ii) Recommended Practices for Merger Notification and Review Procedures; and (iii) an explanatory note on waivers of confidentiality in merger investigations.  These documents identify and discuss certain issues underlying the rationale for, and the content and use of, said waivers, and provide several models for notifying parties to use in the appropriate circumstances.

In addition, the ICA has signed ad hoc bilateral agreements with other NCAs (e.g., with the Brazilian NCA in 2020 and the Spanish NCA in 2021), which also focus on cooperation with regard to cross-border concentrations.

In principle, the ICA accepts both structural and behavioural remedies.

Structural remedies are generally considered by the ICA to be the most effective, and include, for example, the following: (i) the sale of a business (see Case C3932 – Telecom Italia/Seat Pagine Gialle), part of a business (see Cases C11461 – Conad del Tirreno/Nove rami di azienda di Billa, and C2626B – Solvay/Sodi), assets (see Case C4438 – Enel-France Telecom/New Wind), port slots (see Case C11072 – Moby/Toremar) or airport slots (see Case C11608 – Alitalia/Ramo di azienda di WindJet (Newco)); (ii) the severance of links with competitors (see Cases C9817 – Istituto Centrale delle Banche Popolari Italiane/SI Holding, and C2741 – Italcalcestruzzi/Calcestruzzi); (iii) placing a cap on the number of businesses to be owned (see Cases C3597B – Banca Intesa/Banca Commerciale Italiana, and C3818 – Edizione Holding/Autostrade); and (iv) a commitment to license technologies (see Cases C2227 – Fiatimpresit-Mannesmann-Techint/Italimpianti, and C3460B – Parmalat/Eurolat) or trademarks (see Case C2641 – Henkel/Loctite) to competitors.

Behavioural remedies may include the following: (i) an obligation to grant competitors access to infrastructure (see Case C4158 – Seat Pagine Gialle/Cecchi Gori Communications); (ii) the application of fair, transparent conditions, with unbundled offers for different services (see Cases C9817 – Istituto Centrale delle Banche Popolari Italiane/SI Holding, and C11205 – Elettronica Industriale/Digital Multimedia Technologies); (iii) an undertaking involving the termination or the non-renewal of an agreement with a competitor (see Cases C11613 – Compagnia Italiana di Navigazione/Ramo di azienda di Tirrenia di Navigazione, and C6133 – British American Tobacco/Ente Tabacchi Italiani) or with a client (see Case C12017 – Reti Televisive Italiane/Gruppo Finelco); (iv) remedies involving the termination of exclusive distribution agreements or ensuring distribution of third-party products (see Case C714 – Unichips Finanziaria/Alidolce); and (v) a limitation on voting rights in shareholders’ meetings (see Cases C8660 – Unicredito Italiano/Capitalia, and C5422B – Sai/La Fondiaria Assicurazioni).

Pursuant to Article 6(2) of the Law, the ICA may make its approval of the transaction subject to compliance with the measures necessary to remedy the anti-competitive effects of the transaction.  While these measures are usually offered by the notifying parties in the form of commitments, a particular aspect of the Italian system is that the ICA can impose such remedies irrespective of whether the notifying parties consent.  In the case of remedies directly imposed by the ICA or amended by it, the notifying parties remain free to abandon the transaction.

The Law does not set out any time limit for negotiating remedies, but it expressly provides for conditional clearance only with regard to decisions issued by the ICA following a Phase II investigation.  However, the ICA has traditionally interpreted this provision flexibly and also applies it to clearance decisions adopted without an in-depth investigation.  In the latter case, however, conditions or obligations are presented by the parties as formal amendments to the original structure of the transaction (restarting the 30-day Phase I clock), typically as a consequence of the preliminary objections raised by the ICA to the transaction as initially notified.

Failure to Notify or Late Notification

Pursuant to Article 19(2) of the Law, in the case of intentional or negligent failure to notify a concentration, the ICA can impose fines on the undertakings responsible for the notification of up to 1% of their worldwide turnover in the preceding fiscal year.

For the purposes of assessing the gravity of the infringement, and, therefore, the amount of the fine, the ICA typically takes into account a number of mitigating circumstances, such as: (i) the substantial absence of anti-competitive effects arising from the unnotified concentration; (ii) the undertakings’ cooperation with the ICA during the proceedings; (iii) the turnover of the undertaking responsible for notifying the concentration; and (iv) the filing of a late notification on a voluntary basis, possibly including the limited period of time that elapsed between the late notification and the implementation of the unnotified concentration.

Implementation Before Approval or After Prohibition and Failure to Comply

As the Law does not provide for a standstill obligation, there is no penalty for implementation of the concentration before the clearance decision.

Pursuant to Article 19(1) of the Law, the ICA may impose penalties on undertakings that implement a concentration after it has been prohibited or that fail to comply with the measures that the ICA imposes when the concentration has already been implemented in order to restore conditions of effective competition.  The ICA has also made use of these powers to impose penalties where undertakings have not complied with conditions set out in conditional clearance decisions, and administrative courts have supported this approach.

In these cases, the ICA may impose fines of from 1% to 10% of the turnover of the parties in the relevant markets affected by the concentration.  The literal wording of Article 19(1) does not allow for a discretionary assessment of whether or not to impose penalties on  the non-compliant undertakings.  Once the infringement is established, regardless of its gravity, the ICA is required to impose a fine within the limits provided by the provision.  However, the element of gravity comes back into play when determining the amount of the fine, together with the other factors set out in Article 11 of Law No. 689/81, to which reference must be made, insofar as they are applicable, under Article 31 of the Law.  For this purpose, the ICA normally takes into account the gravity of the infringement, any conduct of the undertaking aimed at eliminating or mitigating its consequences, the duration of the infringement, and the economic state of the undertaking.

Procedure

To detect, ascertain, and impose penalties for failure to comply with its decisions or the notification obligation, the ICA opens an ad hoc investigation (giudizio di ottemperanza).  These investigations are not subject to the general procedural rules provided by the Law and Decree No. 217/1998, but to the general procedural framework applicable to administrative penalties established by Law No. 689/1981, where compatible, which offers less rigorous protection for the rights of defence.  Pursuant to Article 18(1) of Law No. 689/1981, within 30 days from being served a decision to open an investigation, undertakings may submit written pleadings and/or a request to be heard.  The hearing normally takes place before ICA officials.  The decision to open an ad hoc investigation normally specifies the duration of the investigation (which is usually 90 days).  The ICA usually issues a decision shortly thereafter.

Pursuant to Article 5(3) of Decree No. 217/98, if the notification is significantly inaccurate, incomplete or misleading, the ICA may ask the notifying parties for additional information that it considers essential for the assessment of the notified concentration.  This formal request interrupts the procedural clock, which starts again when the ICA receives the requested information.

Pursuant to Article 16-bis of the Law, the ICA may impose a penalty on notifying parties that refuse or fail to provide information or documents requested by the ICA, or that provide misleading information or documents, without justification, of up to 1% of their worldwide turnover in the preceding fiscal year.

Actions for annulment of ICA decisions before Italian administrative courts

Merger control decisions, including decisions prohibiting a concentration and decisions authorising a concentration subject to conditions, can be challenged.  As merger remedies can be unilaterally imposed by the ICA, measures made binding in the final decision may differ from those proposed by the parties.  The parties have in the past challenged such decisions on various grounds, for instance, claiming that the measures imposed were not proportionate, or claiming an incorrect definition of the relevant market, or on procedural grounds, with regard to the time limit within which to review the notified transaction.  Decisions authorising a concentration subject to conditions can also be appealed against by third parties if they can prove that their interests are directly and immediately negatively affected by the ICA’s decision.  Such third parties generally include the main competitors of the undertakings involved in the transaction.

Decisions imposing fines for failure to notify a concentration, implementing a concentration despite its prohibition, or failing to comply with measures imposed by the ICA in its clearance decision can also be challenged.

In the Italian legal system, the judicial review of the ICA’s decisions is granted solely to administrative courts.  The review court of first instance is the Regional Tribunal of Latium, Rome (the TAR Lazio).  Judgments issued by the TAR Lazio can be appealed against before the Council of State, acting as a court of last instance.  Both the TAR Lazio and the Council of State can make a referral to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union.

With regard to the grounds on which an appeal may be based, the administrative courts can set aside the decision on appeal on the basis of breach of law, misuse or abuse of power, or lack of competence.  In this regard, the administrative courts may carry out a wide and thorough scrutiny to verify whether the ICA’s assessment stands judicial review.

Appeal to set aside Council of State judgments (so-called ‘Revocation’)

Council of State judgments can be challenged before the Council of State (before the same Section of the Council of State that delivered the judgment, albeit sitting in a different composition to the one that delivered the judgment) in very limited circumstances and, in particular, on grounds of error of fact.  According to settled case law, the error of fact which may give rise to revocation must: (i) arise from an erroneous or omitted consideration of the substantive content of the documents submitted in the proceedings, which led the court to take a decision on the basis of a false factual assumption, i.e. to consider proven a non-existent fact, or to consider non-existent a proven fact; (ii) relate to a contentious point on which the judgment did not expressly state reasons; and (iii) concern a decisive element in the judgment to be set aside, thus entailing a causal link between the erroneous assumption and the judgment itself.  At the end of the appeal to set aside the judgment, the judgment can be annulled, in whole or in part, depending on the grounds of appeal.

Possibility to challenge Council of State judgments before the Italian Supreme Court

Finally, Council of State judgments may be challenged before the Italian Supreme Court.  However, this is possible only for very limited reasons (namely, grounds relating to jurisdiction), which have been interpreted narrowly in the case law.  We are not aware of any Council of State judgments being set aside by the Italian Supreme Court.

In terms of enforcement, in 2023, the ICA reviewed 77 transactions.  Out of these, one required an in-depth investigation in Phase II, 69 were authorised in Phase I, and seven were dismissed.  These figures are similar to the ICA’s approach in recent years.  Over the past five years the ICA has reviewed around 80 transactions each year, granted unconditional clearance in around 95% of cases, required remedies in around 5% of cases and blocked only one transaction during the entire period (amounting to 0.25% of cases).  When comparing the ICA’s intervention rate with other NCAs, it appears relatively non-interventionist.  Its rate, however, is comparable to that of the Commission, which unconditionally cleared 93% and blocked 0.32% of notified transactions over the same five-year period.

In terms of procedure, in March 2024, the ICA adopted the new merger notification Form (see question 23).  Among the most significant updates, it removed the distinction between extended and simplified forms by introducing a single, comprehensive notification form.  Regarding the definition of affected markets, it introduced new categories to cover the innovative efforts of parties and to take into account the notification of below threshold concentrations.  In this regard, a market is deemed affected when the target undertaking or a merging party is: (i) an important innovator or conducts potentially important research activities; or (ii) a start-up or a new operator with high innovative potential that may not yet be reflected in its turnover.  The new form also includes sections on efficiency claims and the cooperative effects of JVs.  It also explicitly requires merging parties to provide internal documents to substantiate their statements.  Information on the impact of potential competitors, new entrants, innovators, and R&D activities must also be included.  The new form also addresses common ownership (for example, for each shareholder of the parties whose share exceeds 10%, a list of additional stakes held in undertakings operating in the affected markets is required).

While no reforms of the merger control regime are currently planned, the following developments may be expected:

Increased use of call-in powers

Article 32 of the 2021 ACL introduced a regime for reviewing certain transactions which fall below the applicable thresholds in order to cover acquisitions of new competitors (see questions 2 and 6).  In the last few months, the ICA has made use of this instrument, calling in eight below-threshold concentrations.  The ICA is expected to continue to rely on its call-in powers in the upcoming years.

More thorough assessment in Phase II investigations

The 2022 ACL extended the Phase II period for reviewing a concentration from 45 to 90 calendar days, thus aligning the Italian legal framework to international standards.  The extended period is expected to facilitate a more thorough assessment of the transaction and the exercise of the rights of defence by the parties.