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

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program (introduced in Italy only in February 2007), the reduction of the statutory minimum fine enabled the Competition Authority to impose merely symbolic fines in order to encourage whistle-blowing. Finally, Law No. 57/2001 introduced a new rule providing that any agreement resulting in an abuse of “economic dependence” is void. 8 The Competition Authority is entrusted with the power to investigate any alleged violation of the rules on abuses of economic dependence and, where necessary, to impose the fines set forth in Section 15 of the Competition Law. As of June 2009, the Authority has not applied the new rules on abuses of economic dependence. 9 The Competition Law underwent a number of significant changes in 2005 and 2006 that also resulted in a widening of the Competition Authority’s competences as well as in an enhancement of its enforcement powers. In particular, in 2005 the Italian Parliament passed two statutes that modified the Competition Law. First, Section 20 (parts (2), (3) and (6)) of the Competition Law was repealed. 10 provision gave the Bank of Italy the exclusive power to enforce Italian competition law in cases affecting core banking activities. As a result, the Competition Authority now enjoys exclusive competence in the enforcement of competition law in the banking sector. 11 Second, in the area of merger control, a merger filing fee was introduced. The amount of the filing fee varies for each transaction in accordance with criteria set out by the Competition Authority. 8 “Economic dependence” is defined by Section 9 of Law No. 192 of June 18, 1998, as “the situation in which an undertaking has the power to determine, in its commercial relationship with another undertaking, an excessive imbalance in the parties’ rights and obligations. In assessing the economic dependence, the possibility for the party subjected to the abuse to actually find on the market satisfactory alternatives must also be taken into account.” Furthermore, in the context of this provision, “abuse” expressly includes a refusal to sell or purchase. 9 However, domestic courts have already applied this provision several times, as the application of Section 9 of Law No. 192 of June 18, 1998, is also attributed to civil courts. Such courts have generally considered this provision in the context of traditional civil law – more specifically, contract law. In this regard, the courts have emphasized that conduct that is incompatible with Section 9 need not have a negative effect on competition. Indeed, the Authority has reached the same conclusion, in an opinion addressed to the Parliament on the bill introducing this new form of abuse. See Disciplina della subfornitura nelle attività produttive, 10 Feb. 1998, n. AS121, Bulletin 5/1998. Moreover, the civil courts have noted that Section 9 introduces a broader notion of abuse, under which a dominant position in the relevant market is not required for the prohibition to apply. Finally, the civil courts have noted that although the language of Section 9 emphasizes the “excessive imbalance in the parties’ rights and obligations,” a situation of “economic dependence” (or “hold up” situation) exists, primarily, when an undertaking is the “mandatory” partner of another undertaking - that is, when the latter is forced to deal with the former where no satisfactory alternative commercial partner is available. See, e.g., Medical Sys. v. Eastman Chemical Italia, 5 Jan. 2004 (Court of Catania), available at www.ilFallimento.it/giurisprudenza/117.htm; see also Petrosino v. Marini Bobini, Danno e Responsabilità, 6 May 2002 (Court of Bari). 10 Law No. 262 of 28 Dec. 2005 11 Law No. 266 of 23 Dec. 2005. 10 This
In 2006, the Italian Parliament strengthened the enforcement powers of the Competition Authority, bringing them in line with the new powers now enjoyed by the European Commission following the so-called “modernization” of EU competition law. 12 More specifically, Section 14(1) of Decree Law No. 223/2006 (the Reform Package) 13 granted the Competition Authority the power to: (i) order interim measures, (ii) accept commitments proposed by companies involved in an investigation into anticompetitive practices, and (iii) operate a leniency program. (a) Interim Measures The new Section 14-bis of the Competition Law states that in urgent cases where (i) there is a risk of serious and irreparable damage to competition and (ii) a cursory examination reveals the existence of an infringement, the Competition Authority may decide on its own motion that interim measures must be adopted. In contrast to the “modernized” enforcement system introduced with Regulation (EC) No. 1/2003, interim measures may not be renewed or extended in their duration. If the addressee of the interim measures does not comply with the decision, the Competition Authority may impose a fine of up to three percent of the annual consolidated turnover of the undertaking concerned. (b) Commitments The new Section 14-ter of the Competition Law introduces the possibility for companies to offer commitments in the context of antitrust investigations. They can do so within three months from the opening of an investigation. The commitments should aim at correcting the conduct under investigation. After assessing the suitability of such commitments, including by means of a market test, the Competition Authority may make them binding on the undertakings concerned and terminate the proceedings without ascertaining any infringement. The commitment decisions do not set fines because they do not contain findings on the merits. 14 Commitment decisions have become a frequently used enforcement tool, and the Competition Authority has now closed several cases by accepting commitments, mostly in 12 Regulation (EC) No. 1/2003. 13 Section 14(1) of Decree Law No. 223 of 4 July 2006 was converted by the Parliament into law, with amendments, with Law No. 248 of 4 Aug. 2006 (Sections 14-bis, 14-ter and 15(2)-bis were added to the Competition Law). 14 Prior to this amendment, there was great uncertainty about the possibility for undertakings to offer commitments with a view to closing an investigation into alleged anticompetitive practices. In particular, since it was not clear on which basis the Competition Authority could accept commitments without completing the investigation with a finding on the merits, the Competition Authority had no obligation to examine commitments that were offered by the undertakings concerned. In addition, the adoption of commitments did not result in any shortening of the duration of the proceedings as – even if commitments were accepted – under the then applicable rules governing administrative proceedings the Competition Authority had to continue its assessment of the allegedly illegal behavior and come to a final decision on the merits before closing the case. 11
Page 1 and 2: Mario Siragusa - Matteo Beretta - M
Page 3 and 4: (c) Cooperation with Other Competit
Page 5 and 6: D. Unfair Practices and Other Prohi
Page 7 and 8: I. INTRODUCTION A. General Comparis
Page 9: 1. Main Legislative Reforms On Marc
Page 13 and 14: domestic law. Moreover, pursuant to
Page 15 and 16: government retains some residual po
Page 17 and 18: Judiciary Council (Consiglio Superi
Page 19 and 20: February 25, 2000 (Decree No. 67/20
Page 21 and 22: 3. Extent to Which Courts Have Embr
Page 23 and 24: (c) Agreements, Decisions, and Conc
Page 25 and 26: Authority’s assessment is not lim
Page 27 and 28: Supreme Administrative Court entire
Page 29 and 30: managers were acquitted. The compan
Page 31 and 32: justified by the possibility that i
Page 33 and 34: The Competition Authority condemns
Page 35 and 36: Inaz Paghe Srl, a supplier of softw
Page 37 and 38: concentration. However, the Supreme
Page 39 and 40: customer lists and price lists were
Page 41 and 42: (iii) Cooperation between the Europ
Page 43 and 44: As of January 30, 2009, the Competi
Page 45 and 46: (ii) The Criteria Used to Determine
Page 47 and 48: of the conduct itself. The Court or
Page 49 and 50: Though the Competition Law has been
Page 51 and 52: extent that, although legally indep
Page 53 and 54: B. Mergers and Acquisitions 1. Tran
Page 55 and 56: In Comifar/Commerciale Farmaceutica
Page 57 and 58: and despite the fact that Italpack
Page 59 and 60: Distinction between Concentrative a
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Given the alternative nature of the
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• the existence of barriers preve
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sophistication of the product, and
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(b) Full-Functionality A joint vent
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The acquisition by API-Anonima Petr
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pending review by the Competition A
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• two or more participants to the
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(ii) Phase II After opening the in-
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Pursuant to Section 19(1) of the Co
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no confidentiality request may be s
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of limitations applicable to violat
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(a) Single-Firm Dominance (i) Horiz
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Authority’s opinion, the strong p
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In Pierburg/Magneti Marelli, 314 fo
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electricity sales market. In reject
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in Airtours. 324 Based on the above
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might be exerted by other operators
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considerations that make the issue
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or reducing its actual turnover. In
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Competition Authority, the Court af
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competition rules in cases affectin
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judgment, the Supreme Administrativ
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(i.e., companies with no fewer than
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The first step in analyzing an abus
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Once the Competition Authority has
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Further, when a vendor cannot decli
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Finally, conduct by a dominant firm
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(a) Exclusive Dealing/Single Brandi
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dello Stato 423 and Infocamere/Cerv
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Additionally, a refusal to deal by
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for potential abusive conduct in th
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Following the opening of the procee
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(f) Exploitative Conduct (i) Excess
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granted to travel agents for reachi
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(h) Remedies/Sanctions A 2005 judgm
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The new rules specifically identify
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used similar exclusive distribution
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license for the production in Italy
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(b) Formal & Informal Consultation
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investigation in a market that had
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The Competition Authority’s key i
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Bar is incompatible with, inter ali
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contains the Competitoin Authoritie
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protection, given the imperfect sta
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supply of the wholesale electricity
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The two judgments provide useful cl
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fine based on the association’s r
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2. Independence of the Judiciary Th
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judicial protection. Therefore, per
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with the power to impose ex officio
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fixing agreement may be found liabl
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collectively refused to supply it w
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Clauses of an agreement that consti
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The Competition Authority was a fou
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