The rules governing merger control in Italy are set out by the Italian Antitrust Law, No 287/1990 of 10 October 1990 (“the Law”). The procedural concerns, including those relating to merger control, are defined by Presidential Decree 217 of 30 April 1998 (the “Procedural Regulation”).

The Italian Antitrust Authority (IAA or the “Authority”) provides specific guidance on merger control in its 1996 Merger Notification Instructions (the “Merger Instructions”), last amended on 6 September 2017. The document offers some clarification regarding the types of transactions that do and do not need to be notified, according to Article 5 of the Law, the definition of the market/s affected by the transaction and the calculation of turnover. The IAA also provides the short-form and full-form templates for the notification of transactions.

The Italian rules on merger control are significantly similar to the corresponding EU merger control rules and must be interpreted in light of the EU principles developed by the European Commission and EU courts. These principles are automatically integrated into the Italian system (Section 1(4), of the Law). The rules are interpreted and applied in light of the Commission Consolidated Jurisdictional Notice adopted under the EU Merger Regulation (the “Commission Jurisdictional Notice”).

The IAA also provides guidelines on pre-notification discussions and the calculation of turnover thresholds, and criteria for the determination of the filing fees, which are defined annually. In the application of fines, the IAA refers to the general rules contained in Law No 689 of November 1981 (Legge di depenalizzazione).

Law Decree No 21 of 21 March 2022 (converted into Law No 51 of 20 May 2022) strengthened (amending Law No 56 of 11 May 2012) the legislation granting the Italian government special powers to protect national interests in strategic sectors. This regulation provides for the obligation to notify the Presidency of the Council of Ministers of certain operations that are likely to affect the ownership of tangible and intangible assets and resources considered to be of strategic importance – traditionally, essential national interests have been identified in defence and national security. Over time, they have been extended to include the energy, transport, communications and 5G broadband electronic telecommunications networks sectors. As a result of regulatory interventions during the pandemic, they were further expanded to include the financial sector; infrastructure and critical technologies, including water and health; food security; access to sensitive information, including personal data; artificial intelligence; robotics; semiconductors; and cybersecurity; as well as nanotechnology and biotechnology.

For special rules for banks, insurance companies, communications industries, see 1.3 Enforcement Authorities.

The IAA is the enforcement authority for merger control and has both investigative and decision-making powers.

The IAA normally co-operates with the following main regulatory authorities:

• the Bank of Italy in the banking sector;
• the Institute for the Supervision of Insurance (“IVASS”) in the insurance sector;
• the Communications Regulatory Authority (“AGCOM”) in the communications sector; and
• the Regulatory Authority for Energy, Networks and Environment (“ARERA”) in the fields of energy and gas.

In this regard, the IAA and IVASS signed two memorandums of understanding (MOUs) in 2013 and 2014, intended to strengthen their collaboration in their respective fields (other MOUs with IVASS were signed or supplemented in 2018, 2019 and 2021). Moreover, according to Article 20 of the Law, the IAA has to ask the IVASS to give a mandatory but non-binding opinion on the operation.

The IAA also signed two MOUs with AGCOM in 2013 and 2016.

With reference to the banking sector, the operations of concentration are evaluated – independently – by the IAA and the Bank of Italy, which applies its powers in relation to the rules on sound and prudent management. At the same time, Article 20 of the Law provides for some exceptions – the Bank of Italy can ask the IAA to approve an operation that leads to a dominant position if the banks concerned have particular stability problems. This authorisation, however, cannot go further than what is strictly necessary.

As regards the communications sector, reference should be made to Law No 249 of 31 July 1997, which requires the IAA to ask for a compulsory but non-binding opinion from AGCOM. Moreover, when at least one of the parties involved in a concentration operates in the “integrated communications system” (which includes, among others, newspapers, internet, radio and television broadcasting), the operation must be notified not only to the IAA but also to AGCOM. Both authorities will conduct the necessary analysis as per their respective powers.

In addition, Article 25 of the Law confers a wide margin of discretion on the IAA where interests relevant to the national economy arise. More specifically, upon a proposal of the Ministry of Economic Development, the Council of Ministers may set forth some general criteria to allow the IAA to clear concentrations that would otherwise be forbidden, provided that the operations do not eliminate competition in the market.

The prime minister can also – following a proposal from the Ministry of Economic Development – prohibit a concentration involving undertakings or entities from countries that do not protect the independence of undertakings or entities under provisions that are equivalent to those provided by the Law, or countries that apply discriminatory provisions or impose clauses that have a similar effect in relation to acquisitions by Italian undertakings or entities.

Notification to the IAA is compulsory if the transaction meets the jurisdictional thresholds (see 2.5 Jurisdictional Thresholds) or falls within the conditions for below-thresholds concentrations (see 2.11 Power of Authorities to Investigate a Transaction). In these terms, even transactions with little significant – or even no – effect on the Italian market must be notified to the IAA, which will assess the impact on competition.

According to Article 19.2 of the Law, the IAA may impose an administrative fine on undertakings that fail to notify a transaction that reaches the Italian thresholds. This fine may be equal to up to 1% of their turnover in the financial year preceding that in which the failure to notify is challenged.

In order to determine the amount of the fine, the IAA’s evaluation has to take into account the subjective elements of the infringement – ie, the behaviour of the undertakings (both wilful and negligent behaviour are relevant), the existence of excusable error, spontaneous notifications, etc – and the objective elements (the competitive impact).

The IAA has the power to impose fines pursuant to Article 31 of the Italian Antitrust Law (see cases C12430B/2022 – Dea Capital Alternative Funds Sgr/Calvi Holding; C12352B/2021 – Doreca-Abruzzo Distribuzione/Ad Beverage; C12295B/2020 – ACEA-Mediterranea-Alma CIS/Pescara Distribuzione Gas; in this latter case, the IAA applied fines of approximately EUR154,000 on the three companies involved). According to Article 28 of Law No 689/81, this power is subject to a limitation period of five years.

The decisions are published on the IAA’s website and in the official bulletin.

The Law classifies the following transactions as concentrations:

• a merger between two or more undertakings;
• an acquisition by one or more subjects controlling at least one undertaking or one or more undertakings, of the direct or indirect control of the whole or parts of one or more undertakings, whether through the acquisition of shares or assets, or by contract, or by any other means; and
• the creation between two or more undertakings of a joint venture by setting up a new company (see 2.10 Joint Ventures).

In general, a concentration arises whenever a transaction involves a change in control on a lasting basis (see 2.4 Definition of “Control”).

Article 5 of the Law expressly provides for some transactions that do not give rise to a concentration, as follows:

• the acquisition by banks or financial entities of shares in companies newly set up or through a capital increase, when such purchase is made only for resale (provided that the shares are resold within a period of 24 months, during which time, the relevant voting rights are not exercised); and
• transactions that have as their main object or effect the co-ordination of the actions of independent undertakings (in this case, the operations may be evaluated under Article 2 of the Law and/or Article 101 TFEU).

The following transactions also do not give rise to a concentration:

• internal restructurings or reorganisations;
• transactions between undertakings that are part of the same group (except in specific circumstances indicated in paragraph 2 letter c) of the Merger Instructions – ie, the absence of interdependence between the subjects involved); and
• the acquisition or incorporation of a company that does not carry out economic activities and does not hold, either directly or indirectly, any other undertaking (however, an operation of this kind qualifies as a concentration when the target company holds – or controls another company that holds – licences, permits, grants or other titles by which a business activity may be carried out; although paragraph 2 letter d) of the Merger Instructions specifies that the mere acquisition of a licence does not constitute a concentration if it is necessary to enable the transferee to undertake its activity).

When the operation arises out of the acquisition of part of one or more undertakings (where “part of an undertaking” means any asset or set of assets to which a turnover is clearly attributable), two or more operations that individually do not meet the jurisdictional thresholds and that were concluded between the same companies in the last two years will be considered as a single operation completed on the day of the last transaction.

Shareholders’ agreements or changes to articles of association are not included when they do not involve a change in the structure of control of an undertaking.

Article 7 of the Law provides a broad definition of control, which includes both direct and indirect control as well as sole and joint control. More specifically, control is acquired:

• in the cases provided for by Article 2359 of the Italian Civil Code, according to which, controlled companies are –
1. companies where another company holds the majority of voting rights exercised in ordinary shareholders’ meetings;
2. companies where another company holds sufficient voting rights to exercise a significant influence in ordinary shareholders’ meetings; or
3. companies that are under the significant influence of another company pursuant to particular contractual relationships entered into with the latter;
• by the holding of rights, contracts or other legal relations which, separately or in combination, and having regard for the considerations of fact and law involved, confer the possibility of exercising a decisive influence on an undertaking. These cases include, for example: property rights or rights of use of all or part of the assets of an undertaking; or rights, arrangements or other legal relations that confer a decisive influence over the composition or the decisions of the corporate governance bodies (eg, commercial licences, see case C12354/2021 – Telecom Italia/Rami di azienda BT Italia; licence agreements, see case C12207/2019-Sky Italia/R2; maintenance contracts, see case C11528/2012 – Otis Servizi/Ramo di Azienda di Adm Ascensori).

In any case, the IAA generally refers to the definition of control provided by the Commission Consolidated Jurisdictional Notice (2008/C 95/01). Acquisitions of minority shareholdings are caught only when such operations lead to a change in the structure of control (eg, when the minority shareholder holds veto rights over strategic decisions of the given undertaking).

Pursuant to Article 16 of the Law, a concentration must be notified in advance to the Authority:

• if the combined aggregate national turnover of all the undertakings concerned exceeds EUR532 million; and
• if the aggregate domestic turnover of each of at least two of the undertakings concerned exceeds EUR32 million.

The above-mentioned thresholds (subject to annual review – see the IAA’s decision No 30507 of 14 March 2023) have been cumulative since the Law was amended in 2012. Indeed, the previous regime provided for notification of an operation only if either one of the two thresholds was exceeded (alternative thresholds). In the following years, the amendment predictably reduced the number of operations notified to the IAA.

These thresholds are based on nationwide revenues realised by the parties involved in a transaction.

In particular:

• in the case of a merger, the relevant turnover is the consolidated turnover realised by the group to which each merging party belongs;
• in the case of a joint venture, the relevant turnover is the consolidated turnover realised by the group to which each parent company belongs;
• in the case of the acquisition of sole control –
1. as regards the acquiring party, the relevant turnover is the consolidated turnover realised by the group to which it belongs; and
2. as regards the acquired party, the relevant turnover is the turnover realised by it;
• in the case of the acquisition of joint control –
1. as regards the acquiring parties, the relevant turnover is the consolidated turnover realised by the group to which each acquiring party belongs; and
2. as regards the acquired party, the relevant turnover is the turnover realised by it.

The group’s consolidated turnover includes that realised by the undertaking concerned, that realised by its subsidiaries and their subsidiaries, and that realised by its parent companies and their parent companies. In the acquisition of control, the target’s turnover includes that realised by the target and that realised by its subsidiaries and their subsidiaries. Should the target be a branch of a business, the relevant turnover is generally estimated having regard to the costs required for the branch to perform its activities.

According to the Merger Instructions, aggregate nationwide turnover means the turnover deriving from the sale of products and/or the provision of services during the previous financial year on the Italian market after deducting returned products, discounts, and taxes directly related to the sale of products and the provision of services. The national allocation of turnover depends on direct sales in Italy and is hence determined by the location of the customer to whom the products have been sold and/or the services that have been provided at the time of the transaction. According to the Merger Instructions, for foreign-registered undertakings, the amounts in foreign currency must be converted into euros at the average exchange rate of the relevant financial year.

The Law provides special rules for the method of calculation of turnover for banks (turnover is equal to the value of one-tenth of their total assets, memorandum accounts excluded) and insurance companies (turnover is equal to the value of premiums collected) (Article 16(2), the Law).

The first threshold (aggregate Italian turnover of all the undertakings concerned) requires consideration of the following data:

• in the case of a merger, the relevant turnover is the sum of the turnovers of all the merging entities (on a group-wide basis); and
• in the case of the acquisition of joint control, the turnover of the undertaking to be considered must be divided equally between all entities acquiring control.

Intra-group sales must not be considered part of the group’s turnover. Moreover, the turnover of the seller does not have to be taken into account unless the seller retains joint control (it is thus an entity acquiring joint control).

Note that, after Law No 124/2017, the national turnover of each of at least two of the undertakings concerned has to be considered as a second threshold.

With regard to changes in the business during the reference period, the IAA follows the principles set out at European level due to the lack of any specific national provision (particularly paragraphs 172 and 173 of the Commission Consolidated Jurisdictional Notice No C 95/01 of 2008).

The IAA’s procedure “Modalities for the Notification of a Concentration Between Undertakings”, as updated in 2017 and unlike its previous version, does not provide for any kind of exemption from the obligation to notify foreign-to-foreign transactions.

This derives from the circumstance that a foreign-to-foreign transaction is not able, presumably, to cumulatively exceed the jurisdictional thresholds.

Italian merger control rules do not consider market share jurisdictional thresholds.

Market shares held by the companies involved in the concentration are considered in the assessment of the impact of the transaction on the market (see 3.5 Information Included in a Filing and 4.2 Markets Affected by a Transaction).

A joint venture constitutes a concentration if the following cumulative conditions are met:

• two or more undertakings set up a new company;
• these parent companies acquire joint control over the new company;
• the new company will operate on the market as an autonomous economic entity (full-function joint venture); and
• the new company’s main object or effect is not the co-ordination of the competitive behaviour of the parent companies.

To evaluate whether a joint venture is a full-function joint venture, the criteria set forth in the Commission Jurisdictional Notice apply.

Should a joint venture not operate as an autonomous economic entity so that the co-ordination effects prevail over the structural effects, the transaction constituting a joint venture will be evaluated under the rules on restrictive agreements and practices (Article 2 of the Law).

If the transaction does not meet the jurisdictional thresholds, the IAA does not have the power to open an investigation.

In some cases, however, there is a notification obligation even for transactions that do not meet the jurisdictional thresholds. The so-called “below-thresholds” transactions were in fact recently introduced into the Law in Article 16(1-bis) by Law No 188/2022. In light of updates to European legislation, the new provision provides the power for the IAA to call in below-thresholds mergers under three cumulative conditions:

• no more than six months have elapsed since completion of the transaction;
• one of the two turnover thresholds provided for in Article 16 of the Law is exceeded or the total worldwide turnover generated by all the undertakings concerned exceeds EUR5 billion; and
• the Authority finds, on the basis of available evidence, that there are concrete risks for competition in the national market or in a part thereof, also taking into account the detrimental effects on the development and diffusion of small enterprises characterised by innovative strategies.

The IAA, considering the amendment made to Law No 287/90, and following the public consultation that was launched, has also adopted an ad hoc Notice (IAA Decision No 30407, 13 December 2022) in which the procedural rules for the application of the new Article as well as clarifications on the temporal and substantive scope of application of the Notice were defined. If the responsible entities fail to notify a concentration that meets the turnover thresholds or that falls within the scope of Article 16(1-bis) of the Law, the IAA may impose fines. In this regard, it is necessary for the Authority to start its investigation within five years of the transaction (see 2.2 Failure to Notify). Additionally, where the parties fail to notify and the IAA is informed of the concentration by any other means, the IAA must commence investigations within 30 days.

There is no standstill obligation under the Italian merger control regime, so sanctions will apply for failure to notify and/or implementation of the transaction in spite of a prohibition decision by the IAA.

However, pursuant to Article 17(1) of the Law, when opening a phase two investigation (see 3.8 Review Process and 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions), the IAA may order the undertakings not to implement the transaction until its final decision.

For example, in the case C11524/2012 – Unipol Gruppo Finanziario/Unipol Assicurazioni-Permafin Finanziaria-Fondiaria Sai-Milano Assicurazioni, the IAA set the suspension of the merger, and of any other preparatory measure, with the decision to initiate the investigation, given that the preliminary assessment found certain competition concerns. In public takeover bids, Article 17(2) provides that, notwithstanding the provision of paragraph 1, the acquisition of the target’s shares can be completed, provided that the acquiring entity does not exercise the relevant voting rights until the IAA issues its decision.

Pursuant to Article 19 of the Law, in the implementation of a prohibited transaction or a transaction in breach of obligations imposed by a conditional clearance decision, the IAA may do the following:

• impose a fine ranging from 1% to 10% of the turnover of the business forming the object of the concentration; and
• require the parties to take measures to restore effective competition and remove any anti-competitive effects of the transaction (for this reason, it is advisable not to implement a transaction during the review process, when competition concerns are likely to be raised by the IAA).

For the quantification of fines, the IAA takes into account the same criteria for failure to notify (ie, remedial action, the personality and economic conditions of the perpetrator, and the duration of the infringement – see 2.2 Failure to Notify).

The Italian framework does not provide for a standstill period, so there are no specific penalties if the parties implement the transaction before the clearance.

In any case, as defined under 2.12 Requirement for Clearance Before Implementation, the IAA may impose the suspension of the concentration, with any breach of the suspension leading to sanctions.

See 2.12 Requirement for Clearance Before Implementation.

See 2.13 Penalties for the Implementation of a Transaction Before Clearance.

A transaction must be notified prior to its implementation – that is, before the ability to exercise a decisive influence over the behaviour of the target has been acquired – but after the parties have agreed on the essential aspects of the transaction.

Indeed, the IAA must be aware of the essential elements of the operation in order to develop its assessment. More specifically, the merger instructions (paragraph D, section 2) distinguish between:

• mergers where notification has to take place before the drafting of the merger deed;
• acquisitions of direct/indirect control under Article 5 (b) of the Law, namely through the purchase of shares/quotas of a company, where the prior notification requirement is fulfilled if the full effectiveness of the acquisition agreement is suspended until the IAA has cleared the operation; and
• joint ventures where notification to the IAA must be made before the incorporation deed is filed with the Register of Companies.

Pursuant to Article 19(2) of the Law, where the responsible company fails to notify the operation, the IAA may impose an administrative fine of up to 1% of the undertaking’s turnover in the financial year preceding that of the omission of notification or late notification.

A notification can be made prior to signing a definitive agreement, provided that the parties have agreed on the essential aspects of the transaction – for instance, in the context of a signed framework agreement or a signed letter of intent.

The payment of a filing fee is not required.

Generally, all undertakings acquiring control are responsible for filing, which can also be undertaken by the company that directly or indirectly controls the acquirer.

More specifically, according to the Merger Instructions:

• in the acquisition of control or the creation of a joint venture, all the companies acquiring control are responsible; and
• for mergers, all merging entities are considered responsible.

In these cases, the filing should be executed jointly by the parties.

Lastly, in the case of a public takeover bid, the responsibility is attributed to the bidder.

There are two different kinds of notification: the long form and the short form. The standard forms are available on the IAA’s website.

The long-form notification is required when the concentration meets one of the following conditions:

• two or more companies involved in the concentration operate in the same affected market(s) and the concentration allows them to reach a combined market share of 25% or more; and/or
• one of the undertakings involved will reach a market share of 40% following the concentration, where at least one of the other entities operates in an upstream or downstream market.

If the acquired or merged undertaking has a market share of less than 1%, the long-form notification is not required. When the transaction does not meet the above conditions in the affected market(s), the companies may submit a short-form notification.

As specified by the Merger Instructions, the Authority can require long-form notification when the information provided by the short form does not allow for an appropriate evaluation of the transaction.

The two notifications require different information, which has to be collected following the respective forms.

In the short form, the parties have to provide the following:

• background information and data about the companies involved in the transaction;
• a detailed description of the transaction (aims of the concentration; the proposed structure of ownership and control after the operation; ancillary restrictions that are directly related and necessary to the implementation of the concentration);
• information on ownership and control of the parties (specifying which entities exercise control over the parties involved);
• a description of the economic activities of the entities;
• the turnover generated by the entities over the past three years;
• information on the financial and personal links of each of the parties with other entities that operate in the affected markets;
• information about the affected markets regarding market share, competitors, sales and further clarifications; and
• documentation (see below).

The long-form notification requires more details on the affected markets. For example, in addition to the elements required for the short form, in the long-form notification it is necessary to include information about the structure of supply and demand, market entry, clients, trade marks, co-operation agreements, and research and development agreements.

The notification form must be sent with other documents that are relative to the concentration, including:

• a definitive draft or the most recent version of the documents concerning the operation;
• the balance sheets and annual accounts for the last three financial years; and
• in the case of a public bid, a copy of the offer document.

In addition to the fundamental information, parties may attach an evaluation of the affected markets, reports, analyses, studies and surveys prepared for the shareholders or the directors, to provide assistance to the IAA.

The IAA’s instructions for the notification form do not provide specific rules about language, but the notification forms are usually drafted and submitted in Italian. As regards the relevant documents attached to the notification, the Authority usually accepts the English version; there are no specific rules about the use of other languages.

The notification form must be undersigned by the legal representatives of the notifying parties, who expressly certify that the information submitted is complete and accurate.

If the IAA deems the information reported in the notification and related documents or annexes to be seriously inaccurate, incomplete or untruthful, it will require the parties to integrate the filing.

According to Article 16 (7) of the Law, the IAA may commence the investigation beyond the time limits provided by this section when the information notified by the undertakings is seriously inaccurate, incomplete or untrue.

In these terms, the period of time provided for the opening of an investigation starts from the date when the IAA receives the complete notification, with all the necessary elements. When the operation requires the long-form notification, the completion of a short-form one may be viewed as incomplete.

Although no specific penalties are provided for incomplete notification, the IAA considers the administrative fine provided by Article 19(2) of the Law for failure to notify to be applicable where the information notified by the undertakings is seriously inaccurate, incomplete or untrue.

The Authority will inform the undertakings pursuant to Article 5(3) of the Procedural Regulation and the 30-day time limit will start from the moment the complete notice is received by the IAA (see, for example, C12419/2022 – New FDM/Docici punti vendita di coop alleanza 3.0).

The review process is divided into two phases that could be pre-empted by pre-notification discussions with the IAA.

In this preliminary and informal dialogue, the parties may submit an informal document, which will be treated as strictly confidential, at least 15 days before the date of the formal notification (see 3.9 Pre-notification Discussions With Authorities). The document must include the following information:

• the identity of the parties to the acquisition or merger;
• a short description of the operation;
• indications of the relevant and affected markets;
• the market shares of the parties; and
• other foreign antitrust authorities involved by notification.

Phase I

In Phase I (the period of 30 days from the notification of the transaction), the IAA may adopt different decisions (it is relevant to know that, for public takeover bids, the term is reduced to 15 days, while for concentrations concerning the acquisition of control of a bank the term is increased to 60 days, pursuant to Article 20(5) of the Law).

First, the IAA can decide on the inapplicability of the Law. This happens, for example, when the operation has an EU dimension, when the transaction does not constitute a concentration, or when the thresholds are not met (see, for example, C12408/2021 – Unione amiatina/Due rami di azienda di Unicoop tirreno where the turnover thresholds were not met; in case C12413/2021 – Eurospin/Tredici rami di azienda di zero1, the IAA affirmed that the operation does not constitute a concentration according to Article 5(1) of the Law).

The IAA could decide to clear the transaction without opening an in-depth investigation if the operation evaluation does not identify competition issues. In these terms, the operation can proceed because there are no serious doubts about compliance with merger rules.

The IAA may decide not to open an investigation if corrective measures are taken.

The IAA could refer a concentration to the Commission that does not have a European dimension but that affects trade between the member states and threatens to significantly affect competition within its territory (see case C5819/2003 – General Electric/Agfa Ndt – Rami di azienda di Agfa Gevaert).

Otherwise, the Authority can decide to open an in-depth investigation when it deems it possible that the concentration may lead to a prohibition decision. This last decision opens Phase II of the review process.

Phase II

Once the IAA has started Phase II, it may adopt the final decision within 45 days. The IAA can decide on clearance, on clearance with necessary measures to avoid anti-competitive outcomes, or on the prohibition of the transaction. Moreover, this period may be extended during the investigation for a further period of no more than 30 days where the undertakings fail to supply the information and the data in their possession upon request.

When the IAA proceeds with the second phase of the investigation, the overall time for clearance is normally 75 days from the notification of the operation. However, the Authority often extends this period, uses its power to stop the time limit of the first phase, or takes advantage of the 30 extra days of Phase II.

When the concentration involves undertakings that are active in the communications or insurance sectors, the Law provides for co-ordination with the competent authorities, AGCOM and IVASS, respectively. In this case, time limits are suspended until the Authorities return their opinion. The suspension also ends if the opinion is not returned within the period provided by the Law (30 days).

The phase prior to the formal notification of mergers is regulated by Procedural Notice, 20 June 2005, which was adopted in response to the IAA’s experience that showed the need for the parties to consult an Authority before formally notifying a merger or acquisition, provided that the second turnover threshold referred to in Article 16(1) of the Law is exceeded.

This informal procedure is seemingly being encouraged by the IAA, but it has no common application.

This informal dialogue, which is strictly confidential, aims to streamline the procedure and enable the Authority to issue its determinations more promptly.

The 30-day time limit is interrupted when the information supplied by the undertakings is seriously inaccurate, incomplete or untrue, and it applies from the date the IAA received the notification, with all the necessary elements.

Transactions may be notified using the short form in lieu of the long form. The short form can be used where a transaction does not require long-form notification (for differences in short-form and long-form notification, see 1.1 Merger Control Legislation). There are no differences in the timing for clearance with respect to the short and long form.

There are no cases in which clearance can be otherwise expedited.

While until recently the IAA based its assessment of operations entirely on the so-called dominance test – based on which, a transaction is prohibited if it creates or strengthens a dominant position in the domestic market with the effect of eliminating or appreciably restricting competition on a lasting basis, the recent Law No 118/2022 updated Article 6(1) of the Law by introducing the Substantial Impediment of Effective Competition (SIEC) test, while maintaining the previous dominance test, which continues to represent the first indicator of situations in which effective competition may be significantly impeded.

The SIEC test has already been introduced and used by the European legislator. According to this approach, the existence of a dominant position is not necessary to prohibit a concentration; the assessment must be based on a more general evaluation of the effects on the affected market (the increase of prices).

The introduction of the SIEC test is thus intended to fill a gap in the national competition protection instruments available in the context of merger review, allowing the Authority to align with the European Commission’s practice and to impose remedies or prohibit merger operations which, while not leading to the creation of a dominant position, may lead to a weakening of competitive conditions due to, for example, the oligopolistic but non-collusive nature of the markets concerned or the presence of particularly complex vertical relationships.

In the assessment process, the IAA first has to identify the relevant product and geographic market(s). Considering that this is an ex-ante evaluation, the IAA will try to provide the competition constraints to which the undertakings concerned would be subject after the implementation of the transaction. In this analysis, the IAA essentially follows the European Commission’s practice.

Secondly, the IAA proceeds with the evaluation of the effects of the notified transaction on the previously defined market(s). Pursuant to Article 6(1) of the Law, the Authority takes into account: the structure of all the markets concerned and actual or potential competition, as well as the market position of the undertakings concerned, their economic and financial power, the choices available to suppliers and users, their access to sources of supply or market outlets, the existence in law or in fact of obstacles to entry, supply and demand trends for the products and services in question, the interests of intermediate and ultimate consumers, and technical and economic progress, provided that it is to the consumer’s advantage and does not form an obstacle to competition.

The Merger Instructions define the “affected” markets as the relevant product and geographic markets in which:

• two or more undertakings involved in the concentration are active and will, following the operation, hold a combined market share of 15%;
• one of the undertakings involved in the concentration will have a market share of at least 25% after the operation, provided that at least one other participant is active in an upstream or downstream market (which will also be considered to be an affected market); and
• an undertaking being acquired or merged has a market share of at least 25%, and the other undertakings involved in the concentration do not operate in that same market, nor in a market upstream or downstream thereof.

Market shares represent a prominent element in the evaluation of the concentration. More specifically, if the operation determined a final market share below 25%, it will be presumed that there are no effects on effective competition in the affected market. It is also clear that high market shares will determine a stringent assessment by the IAA.

The IAA usually relies on the case law of the European Commission and its own previous decisions, especially with reference to the definition of the relevant market.

In its assessment of transactions, the IAA abides by the general rule to adhere to the competition law principles elaborated by the EU legal order. In particular, the IAA has followed the EU principles on collective dominance, adapting them to the specific circumstances of the case. The IAA takes into account both horizontal and non-horizontal effects on competition.

Horizontal Operations

With regard to horizontal operations, it has to be noted that the IAA considers the market share that the resulting entity will have in the relevant market involved in the operation and analyses such markets by comparing the market shares of the main competitors. Even if it is not a mandatory rule, a dominant position is generally recognised by the IAA when the companies have a market share that exceeds 40%. Furthermore, special attention is given to the increase in market power that derives from the operation. The IAA generally also considers the presence of entry barriers, market transparency and market dynamism in its analysis, and the existence of buying power capable of countervailing a significant market power from the supply side.

The IAA usually makes a distinction between unilateral and co-ordinated effects; the former lead to the elimination of a direct competitor and, in general, occur when the resulting undertaking significantly increases its individual market share as a result of the operation, while the latter lead to a situation where there is a high risk of collusion between different competitors.

Vertical Operations

In assessing vertical operations (which are generally considered to be less problematic than horizontal ones), the IAA pays particular attention to three potential risks:

• the foreclosure effects on the market;
• a possible increase in entry barriers; and
• the probability of tacit collusion between vertically integrated competitors.

Conglomerate Concentrations

Sporadically, the IAA evaluates the so-called “portfolio effects” in conglomerate concentrations – ie, operations not involving competitors or undertakings that are active at different levels of the same supply chain. Such operations do not generally give rise to competition concerns, unless they occur in complementary markets.

The “Failing Firm Defence”

Finally, it should be noted that the Law does not make any reference to the so-called “failing firm defence”. However, in following the European Commission’s principles, the IAA has shown its willingness to accept this defence if the undertakings involved can demonstrate that:

• without the acquisition, the failing firm would have been forced to exit the market;
• even without the acquisition, the market share of the failing firm would have been obtained by the acquiring undertaking; and
• there are no less restrictive solutions.

Although the IAA does not usually take efficiencies into account in its assessment of merger control transactions, in some cases it has referred to efficiency gains such as cost savings (case C8699/2007 – London Stock Exchange Group/Borsa Italiana).

Non-competition issues such as industrial policy, national security, foreign investment, employment, or other public interest issues are generally not taken into account during the review process. Therefore, it is relevant to consider that, pursuant to Article 25 of the Law, it could be possible for the IAA to clear an operation that is otherwise forbidden, in an exceptional case of relevant national economic interest.

In the banking field, the IAA may derogate from the rules concerning merger control and, more specifically, may authorise a merger transaction that creates or strengthens a dominant position to grant stability for one or more of the parties involved.

Regarding foreign direct investments, see 1.2 Legislation Relating to Particular Sectors.

A joint venture constitutes a concentration if the following cumulative conditions are met:

• two or more undertakings set up a new company;
• these parent companies acquire joint control over the new company;
• the new company will operate on the market as an autonomous economic entity (full-function joint venture); and
• the new company’s main object or effect is not the co-ordination of the competitive behaviour of the parent companies.

Unlike EU rules, the joint acquisition of an existing company does not fall within the meaning of joint venture provided by the Law, and it will be treated as an acquisition of control.

To evaluate whether or not a joint venture is a full-function joint venture, the criteria set forth by the Commission Jurisdictional Notice apply.

Should a joint venture not operate as an autonomous economic entity, so that the co-ordination effects prevail over the structural effects, the transaction constituting a joint venture will be evaluated under the rules on restrictive agreements and practices (Article 2 of the Law).

The IAA has the power to adopt a prohibition decision if, following the second phase, it assesses that the transaction significantly impedes effective competition in the national market or in a relevant part thereof, in particular as a result of the creation or strengthening of the dominant position of an undertaking.

The Authority may also clear the transaction, imposing the measures that it deems necessary to prevent the negative consequences referred to above.

Moreover, when opening a phase two investigation, the IAA may also interfere with the transaction by ordering the undertakings concerned to suspend it until the end of that investigation. In addition, when the transaction has already been implemented and the final decision finds it to be prohibited, the IAA has the power to impose all the necessary remedies to restore conditions of effective competition in the market.

The parties to a transaction that could give rise to competition concerns may propose both behavioural and structural remedies.

Structural remedies are generally preferred by the IAA and may include, for instance, the divestiture of intellectual property rights, the divestiture of assets or activities (eg, slots in the airline sector), and the divestiture of shareholdings.

Despite its preference for structural remedies, the IAA may also accept behavioural remedies, such as commitments to reducing the presence of the same individuals in the managing bodies of competing banks in the banking sector, or commitments aimed at granting competitors access to an essential resource/infrastructure, for instance, in the telecommunications sector.

According to the European framework, the European Commission may only impose remedies that are offered by the undertakings involved. On the contrary, pursuant to Article 6(2) of the Law, the IAA may unilaterally impose any further measures considered necessary.

Although the application of remedies is done on a case-by-case basis, it is useful to consider the Commission’s notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (2008/C 267/01), which defines the content and procedural aspects to propose and evaluate remedies.

In the case of horizontal mergers, remedies are generally intended to reduce the resulting market share through divestments, while the most frequently used remedies in vertical mergers are aimed at limiting foreclosure risks deriving from the operation.

As noted above, the IAA usually prefers structural measures (see 5.2 Parties’ Ability to Negotiate Remedies).

The parties to a transaction that could give rise to competition concerns may propose measures that are deemed appropriate to address such concerns, during the first phase of the merger control proceeding and even during the pre-notification discussion, if it has commenced. During the second phase of the merger control proceedings, and if the IAA considers that the proposed transaction could be prohibited, the parties may propose remedies deemed appropriate to eliminate those elements of the transaction that could distort competition. Likewise, during the pre-notification discussion or the first phase, with regard to transactions that could give rise to competition concerns, the IAA may propose certain measures, and may impose remedies if, during the second phase, it considers that the transaction could significantly impede effective competition in the national market or in a relevant part thereof, in particular as a result of the creation or strengthening of a dominant position.

It must be noted that, after the imposition of remedies by the IAA, the parties may request the removal of one or more remedies if there are any changes in the market. In this regard, because such a decision must be taken by the IAA jointly with the parties to the concentration, the IAA must open a proceeding. For example, in the recent cases C11205B/2020 Elettronica Industriale/Digital Multimedia Technologies and C12207B/2022 SKY Italia/R2, the IAA revoked certain measures adopted with its Decisions No 23117/2011 and No 27784/2019 respectively, due to a change in the factual and legal situation, and also with reference to the configuration of the Italian market.

Measures accepted by the IAA during the pre-notification discussion or the first phase are not binding. If the parties implement the transaction without the prescribed measures, the IAA cannot impose fines upon these parties, and it may only consider that the transaction has been implemented within a changed factual scenario.

However, remedies accepted by the IAA during the second phase are binding upon the parties, and the IAA may impose fines ranging from 1% to 10% of the turnover of the business forming the object of the transaction if the parties implement the transaction in the absence of the aforesaid remedies.

All decisions permitting or prohibiting a transaction are formally notified to the parties involved and published on the IAA’s website and in the official bulletin.

There is no recent case law on the imposition of remedies or prohibitions of concentrations in foreign-to-foreign transactions.

Due to the lack of provisions concerning ancillary restraints in Italian law, the IAA evaluates the restrictions – which have to be indicated by the undertakings in the specific section of the long-form notification – in light of the EU principles.

The IAA must consider explanations of the parties as to why the ancillary restraints need to be considered as strictly necessary for the implementation of the operation, and the result of this assessment is indicated in the final decision of the Authority.

Third parties may intervene in merger control proceedings if they are directly, immediately or presently damaged by the infringements under investigation or by the measures consequently adopted.

These third parties may intervene as follows:

• with regard to the first phase, the IAA publishes a short advice of the transaction notified, inviting third parties to submit observations on the proposed concentration within the next five working days from the date of publication; and
• with regard to the second phase, once the decision declaring the opening of the investigation has been published in the official bulletin, third parties may intervene with respect to all transactions, by submitting written representations, being heard by the case team, and also attending hearings, especially if this has been requested by the notifying parties (third parties may submit the request to intervene within ten days of publication in the official bulletin).

Third parties may also lodge complaints before the IAA against undertakings that have failed to notify a transaction.

Third parties may be contacted by the IAA to provide certain information or exhibit particular documents that could help the Authority to assess the operation. The IAA usually contacts the third parties in writing.

All IAA decisions (prohibition/approval decisions and decisions to open an investigation) are published in its bulletin and on the website, with a notice that indicates the main features of the proposed concentrations. For major decisions, the IAA typically also issues press releases on its website.

Business secrets are removed from the IAA’s decisions only if the parties make an express reasoned request to the IAA to this effect, and the IAA accepts it. Therefore, decisions published by the Authority will not contain the information included in the notification and the attached documents if the parties have expressly indicated that these constitute business secrets.

Pursuant to Regulation 1/2003, the IAA is part of the European Competition Network (ECN) and co-operates closely with the European Commission and national competition authorities of all other EU member states.

Upon express authorisation being given by the parties to the transaction, the IAA may also exchange information with foreign competent authorities, even those of third countries, provided that these authorities guarantee the same degree of confidentiality with regard to the transaction as granted by the IAA.

The IAA is also part of the EU Merger Working Group, whose aim is to increase convergence and co-operation among EU merger jurisdictions. It is also part of the International Competition Network (ICN), with 136 other competition authorities in the world, the main purpose of which is the exchange of information or documents in relation to ongoing investigative proceedings, as well as the evaluation of initiatives aimed at the dissemination of competition culture in the respective countries.

The IAA’s decisions approving or prohibiting transactions may be appealed by the addressees or other interested third parties, before the Administrative Court of Lazio (“TAR Lazio”).

The TAR Lazio may annul the IAA’s decision, totally or partially, on points of law, for lack of jurisdiction or competence, violation of laws or abuse of power.

The term for filing an appeal before the TAR Lazio is 60 days from the notification of the IAA’s decision. The TAR Lazio’s judgment may subsequently be appealed before the Supreme Administrative Court (Consiglio di Stato) either within 30 days of the notification of the TAR Lazio’s judgment, or within three months of the publication of the judgment in the TAR Lazio’s registry.

The rulings of the Supreme Administrative Court can be challenged before the Court of Cassation only on jurisdictional grounds, within 60 calendar days from the notification or within six months from the publication of the judgment; the rulings may also be subject to revocation under specific and extraordinary conditions provided in Articles 395 et seq of the Italian Civil Procedural Code.

Each phase of the judicial review lasts around one year, so a complete judicial review of an IAA decision takes around two or three years.

Third parties, having a qualified interest, can bring an appeal before the TAR Lazio.

The Italian FDI regime, also known as “Golden Power Law”, gives the Italian government special powers to approve or veto FDIs. According to the regime, the Italian government has the power to review all transactions relating to Italian companies that carry out “strategic activities” or hold “assets with strategic relevance” in certain sectors deemed pivotal for Italy, and against potentially predatory transactions. 

During 2022, new amendments provided for both substantial and procedural changes to the Italian FDI screening regime.

On one hand, a new pre-notification procedure has been adopted, pursuant to which any company is entitled to file a voluntary pre-notification to the Italian government based on the information available as of the date of the pre-filing. Within 30 days of the pre-filing, the government must complete the related assessment.

On the other hand, the sectors and assets under which the golden power regime must be followed have been progressively expanded and include, but are not limited to: defence and national security; energy; the financial, insurance and credit sectors; media; infrastructure, transportation and telecommunications; strategic technologies; health and pharma.

Regarding foreign subsidies legislation, the EU’s Foreign Subsidies Regulation (FSR), which is directly applicable in Italy, recently came into force on 12 January 2023. The new set of rules for addressing distortions caused by foreign subsidies should allow the EU to remain open to trade and investment, while ensuring a level playing field for all companies operating in the European single market.

The IAA’s Decision No 30507 of 14 March 2022 modified the thresholds (see 2.5 Jurisdictional Thresholds).

Regarding the newly introduced below-thresholds operations, see 2.11 Power of Authorities to Investigate a Transaction.

The IAA recently prohibited a transaction in case C12461/2022 – Enel Produzione/ERG Power, pursuant to Article 6(1) and (2) of the Law. In detail, the Authority stated that the operation appeared to give rise to the creation and strengthening of a dominant position on the relevant markets for production and wholesale supply and electricity dispatching services, respectively, such as to eliminate or substantially and durably reduce competition.

Among the numerous transactions assessed in 2022, in two operations the IAA assessed the inapplicability of the Law (C12485/2022 – AGSM AIM Energia/Compago; and C12422/2022 – Mondadori Media – Artoni Group/Press di Distribuzione Stampa e Multimedia).

In the last three years (2019–2022), the IAA has imposed the following fines for failing to notify: EUR285,000 in the case C12414B/2022 – Project Informatica/Centro Computer; EUR6,460.33 in the case C12430B/2022 – Dea capital alternative funds sgr/Calvi holding; a total of about EUR12,000 in the case C12352B/2021 – Doreca-Abruzzo distribuzione/ad beverage; and a total of about EUR154,000 in the case C12295B/2020 – ACEA-Mediterranea-Alma CIS/Pescara distribuzione gas.

Moreover, between 2019 and 2022 the IAA often authorised mergers by ordering the measures necessary to prevent the creation or strengthening of a dominant position on the national market within the meaning of Article 6(2) of the Law (see, for example, recent IAA cases C12488/2022 – Bubbles Bidco/Quattro; C12422B/2022 – Mondadori Media – Artoni Group – SRH/Press-Di distribuzione stampa e multimedia; C12410B/2022 – Cinven Capital Management – Fressnapf Beteiligungs/Agrifarma – Maxi Zoo Italia; and C12373/2021 – NEXI/SIA).

There have also been cases in which the IAA has subsequently revoked the measures imposed pursuant to Article 6(2) of the Law, after assessing that the reasons in fact and in law which had motivated the imposition of the measures previously ordered no longer existed (see, for example, IAA cases C12207B/2022 – SKY Italia/R2 – Revisione misure; and C11205B/2020 – Industrial Electronics/Digital Multimedia Technologies-Revision of Measures).

In one case the Authority examined whether there had been a failure to comply with its decision authorising the operation with measures, pursuant to Article 19(1) of the Law, concluding that there had been no failure to comply (IAA case C12246B/2022 – Fratelli Arena/Rami di Azienda di SMA-Distribuzione Cambria-Roberto Abate).

Finally, in 2023, the Authority established a violation of Article 16bis of the Law in two cases by finding a failure to respond to the IAA’s RFIs made to the companies involved (C12476B/2023 – Marbles/Irideos – AGSM AIM Omessa risposta a RFI; and C12476C/2023 – Marbles/Irideos – Stack EMEA Omessa risposta a RFI).

Recently, the monitoring of below-thresholds transactions has been an area of concern for the authorities.

The reason for this concern is that, in the new market context, merger transactions involving companies that have a turnover below the relevant thresholds, but whose acquisition may have a significant impact on the market (eg, where the acquisition concerns a small innovative start-up with significant competitive potential), are becoming increasingly common. The recent introduction of an obligation to notify below-thresholds transactions in the Law responds to this concern. It will be particularly interesting to evaluate how the Authority will apply Article 16(1-bis) of the Law and the relevant Notice in practice.