Competition Law in Italy The first 20 years of law and practice

Authority utilized its merger control powers and prerogatives with a view to dismantling
these links, even by adopting a quite creative (and sometimes questionable) approach.
Another common feature of these banking cases is that the Competition Authority
carried out its competitive assessment with an emphasis on the analysis of the
concentration’s effects at the local level. In many cases, the Competition Authority required
the divestiture of numerous branches, according to a narrow delimitation of the relevant
geographic markets, defined as being limited to the provincial level.
(b) Insurance Sector
The Competition Authority is responsible for the enforcement of the Competition law
with respect to insurance companies. 362
It must request, however, the non-binding opinion
of ISVAP-Istituto per la Vigilanza sulle Assicurazioni Private e d’Interesse Collettivo
(“ISVAP”). The non-binding opinion must be issued by ISVAP within 30 days of receiving
the documentation on which the proposed decision is based. Although the period in which
the ISVAP must render its opinion suspends the statutory 30 day duration of Phase I, the
Competition Authority may nonetheless adopt its decision if the ISVAP’s opinion is not
issued within 30 days.
The statutory 30 day duration of Phase I is suspended pending the issuance of ISVAP’s
opinion. Consequently, Phase I decisions may be adopted by the Competition Authority up
to 30 days after the expiration of the statutory deadline, in order to account for the additional
term applicable to ISVAP.
In RC Auto, 363
the Supreme Administrative Court put forward a number of
considerations regarding the nature of ISVAP’s opinion as well as the relationship between
the Competition Authority and ISVAP in the application of domestic competition rules
within the insurance markets. First, the Supreme Administrative Court clarified that the
interested undertaking has no right to express its view as to the content of ISVAP’s opinion
because the opinion is relevant only to the Competition Authority’s decision-making process
and, accordingly, does not form part of the fact-finding phase of the administrative
procedure. Furthermore, the Supreme Administrative Court confirmed that the Competition
Authority should not necessarily transmit its entire final draft decision to ISVAP, but rather
only the essential elements on which it intends to base its future decision. Finally, the Court
affirmed that the considerations expressed in ISVAP’s opinions vary in authoritative weight
depending on whether they refer to the characteristics and regulations specific to the
insurance sector or to how domestic competition rules should apply in a particular case. In
either case, the Competition Authority may depart from ISVAP’s positions, but in the first
case the rationale behind such departure should be particularly persuasive. In the same
Chairman communicated the Competition Authority’s intention to initiate a sector investigation
aimed at analyzing in more detail the drawbacks of these links. See IC 36, La corporate governance
di banche e assicurazioni, 23 Dec. 2008, Bulletin 49/2008.
362
See Competition Law, § 20(4).
363
Autorità Garante della Concorrenza e del Mercato v. Assicurazioni Generali and other, 23 Apr.
2002, n. 2199 (Cons. stato).
102