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

(c) Agreements, Decisions, and Concerted Practices
Section 2 prohibits any form of cooperation between independent undertakings that
prevents, restricts, or distorts competition, irrespective of whether this cooperation is
achieved through informal understandings or within associations, consortia, and similar
entities. 43
The concept of an agreement is very broad. For Section 2 to apply it is sufficient that
there exists “the joint intention of two or more undertakings to stop acting independently
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and to conduct themselves on the market in a coordinated way.” In other words, an
agreement falls within the scope of Section 2 if it expresses the intention of the parties even
without the existence of either a valid and binding contract under national law, or a written
contract. The Competition Authority has found that there can be an agreement in cases of
declarations of intent, or recommendations that do not carry any legal obligation.
Participation in an agreement can be tacit. 45
Section 2 applies also to coordination between independent undertakings achieved
through a trade association, a consortium, or a similar entity. A trade association or a
consortium may be held liable for behavior by its members which produces anticompetitive
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effects. The association itself may be fined. In particular, decisions by trade associations or
consortia that relate to their members’ commercial policy may violate Section 2.
Recommendations issued by an association have often been held to constitute a decision,
even if the recommendation is not binding upon the members. 47 Even if it is approved by a
public authority, an association’s decision can be struck down by the Competition
Authority. 48
In accordance with principles of EU law, Section 2 also prohibits concerted practices
affecting competition. The Competition Authority defines a concerted practice as a form of
coordination where undertakings, without entering into any formal agreement or establishing
43 Pozzuoli Ferries-Gruppo Lauro, 19 Oct. 1994, n. A49, Bulletin 42/1994; Fremura/Ferrovie dello
Stato, 24 Feb. 2000, n. A227, Bulletin 8/2000.
44 COMPETITION AUTHORITY, ANNUAL REPORT 1994, at 127 (1995).
45 The Competition Authority referred to the principle whereby participation in an agreement can be
tacit in Mercato del Calcestruzzo Preconfezionato ad Olbia, 20 Mar. 1997, n. I210, Bulletin 12/1997.
46 Inaz Paghe/Associazione Nazionale Consulenti del Lavoro, 3 Feb. 2000, n. I308, Bulletin 5/2000.
47 Assirevi, 26 Aug. 1991, n. I5, Bulletin 7/1991.
48 The Competition Authority has consistently held that the fact that a public authority was aware of,
participated in, or approved a restrictive agreement does not protect the agreement from the
requirements of the Competition Law. See, e.g., IBAR/SEA, 16 Mar. 1994, n. A56, Bulletin 11/1994
(ground-handling tariffs approved by the Minister of Transport were considered abusive under § 3);
Consorzio del Prosciutto di San Daniele-Consorzio del Prosciutto di Parma, 19 June 1996, n. I138,
Bulletin 25/1996 (consortia’s plans to fix production quotas that were approved by the Minister of
Agriculture, the Minister of Industry, and the Minister of Health were found to be in violation of
Section 2); Consorzio Parmigiano Reggiano, 24 Oct. 1996, n. I168, Bulletin 43/1996 (consortia’s
plans to fix maximum production quotas that were approved by the Ministry of Agriculture were
found to be in violation of § 2).
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