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

(i.e., companies with no fewer than 500 employees and aggregate indebtedness of not less
than € 300 million). This reform sets forth a special merger control regime applicable to the
review of concentrations involving large insolvent companies providing “essential public
services,” which as a result are exempted from the need to obtain clearance from the
Competition Authority under the applicable national merger control regime. 370
Nonetheless,
the parties involved remain subject to the obligation of notifying the proposed transaction to
the Competition Authority along with a proposal of behavioral remedies aimed at
preventing, following the implementation of the transaction, the application to consumers of
higher prices or other unjustifiably unfair contractual conditions.
Within 30 calendar days from the date of notification, the Competition Authority,
moving from the aforesaid proposal, adopts the final decision providing for the most suitable
package of remedies and establishing the date (no sooner than three years) by which
monopoly positions possibly resulting from the reviewed transaction must be terminated.
Failure to comply with such behavioral remedies or time limit would lead to pecuniary
sanctions pursuant to Section 19 of the Competition Law.
This particular regime was applied for the first time in the context of the consolidation
of the two most important Italian airlines (Alitalia and Airone), under the control of
Compagnia Aerea Italiana (CAI). The merged entity was found to be dominant on a
considerable number of national routes and, thus, in a decision adopted on December 3,
2008, 371
the Competition Authority set forth the behavioral remedies—some of which had
been offered at the outset by the notifying parties—aimed at preventing CAI from
unlawfully exploiting its market power. In particular, the Competition Authority decided
that for a period of three years from the commencement of CAI’s operations: (i) CAI shall
establish a frequent flyer program ensuring a broad coverage of both national and
international routes; (ii) CAI’s published fares shall be structured in such a way as to fulfill
customers’ needs on all the market’s segments—in particular, discounted fares shall be
adequately accessible throughout the year, on all routes, on every flight; (iii) in order to
protect the most price-sensitive passengers’ segment, CAI shall guarantee availability on
every flight of at least 10 percent of tickets at the lowest economy fare offered by the
Alitalia and Airone groups on the same route during the previous corresponding IATA
season; (iv) in order to ensure more user friendly and transparent service’s conditions,
within one month from the commencement of the operations, CAI shall set up a free
telephone line, a specific information area on its website, and a mobile phone message
service aimed at managing service problems and providing passengers with real time
charge of managing the business of the debtor and formulating a plan of reorganization to be
approved by the Government. Remarkably, prior to the reform, the aforesaid special proceedings
were only available to companies pursuing a reorganization plan aimed at restructuring the company
as a going concern. Now the reorganization plan entails the divestiture of the debtor’s assets to third
party purchasers, whether as a whole or as one or more lines of business.
370
The provision applies to concentrations that do not fall within the exclusive jurisdiction of the
European Commission under the EC Merger Regulation.
371
Compagnia Aerea Italiana/Alitalia Linee Aeree Italiane-Airone, 3 Dec. 2008, n. C9812, Bulletin
46/2008.
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