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

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total fines of € 20 million on ETI. However, on July 14, 2003, the TAR annulled the portion of the Competition Authority’s decision finding ETI responsible for infringements that occurred prior to its formation. The Competition Authority had maintained that, after ETI was created, AAMS had ceased to carry out any economic activities, and thus, in order to preserve the effectiveness of competition law, any fines relating to AAMS’s previous commercial behavior had to be imposed on its economic successor ETI. The TAR rejected this approach and concluded that, to achieve consistency with the case law of the European Union Courts, 75 ETI could not be held liable for infringements committed by a different legal entity which still existed at the time the fine was issued. Therefore, the TAR remanded the case to the Competition Authority to reassess the amount of the fine. 76 On further appeal, the Supreme Administrative Court sought the assistance of the ECJ pursuant to Article 267 TFEU (ex Article 234 TEC). With a request for a preliminary ruling, it asked the ECJ whether, in a case such as this, fines should be levied on the economic successor. In its preliminary ruling, the ECJ held that the principle of personal liability does not preclude the penalty for the infringement commenced by AAMS and continued by ETI from being imposed in its entirety on ETI. 77 The question of assessment of antitrust liability of a successor undertaking has also been addressed by the Competition Authority in situations in which the undertaking was a legal entity at the time of the infringement but subsequently lost its separate legal personality when it was absorbed by a larger corporate entity. This situation was analyzed by the Competition Authority in RC Auto. 78 This case establishes the principle that when the economic and functional successor of an undertaking continues the same basic activities, and also assumes the assets and liabilities of the undertaking, that successor may be held liable for the actions of its predecessor. In this context, there is no need to prove that the economic successor was involved in, or carried on, the unlawful activities. This solution is 75 See, e.g., Case T-6/89, Enichem ANIC S.p.A. v. Commission (Polypropilene), 1991 E.C.R. II-1623; Case T 327/94, SCA Holding Ltd. v. Commission, 1998 E.C.R. II-1373, aff'd Case C-297/98 P, SCA Holding Ltd v. Commission, 2000 E.C.R. I-10101. According to these cases, when an undertaking is identified as a participant in the infringement, it cannot escape fines (or avoid being the addressee of an infringement decision) by selling or otherwise disposing of the infringing assets. 76 Philip Morris & ETI v. Autorità Garante della Concorrenza e del Mercato, 29 Oct. 2003, n. 9203/2003 (Trib. ammin. reg.). For examples of the Competition Authority’s previous practice, see Tubi Dalmine Ilva/General Sider Italiana/Arvedi Tubi Acciaio, 14 Dec. 1995, n. I135, Bulletin 50/1995, and Byk Gulden Italia/Istituto Gentili, 25 Feb. 1999, n. I332, Bulletin 8/1999. In particular, in the latter case, Istituto Gentili (IG) had divested in 1997 all its assets in the relevant market to Abiogen. IG claimed that responsibility for the infringement should not have been attributed to IG but rather to Abiogen. However, the Competition Authority rejected this argument, holding that IG was responsible for operating the undertaking involved in the infringement (i.e., the divested business) at the time the infringement took place. Since IG was still in existence, it could be held liable even though it had disposed of the assets in the market concerned. 77 Case C-280/06, Autorità Garante della Concorrenza e del Mercato v. Ente Tabacchi Italiani and Others, 2007 E.C.R. I-10893. 78 RC Auto, 28 July 2000, n. I377, Bulletin 30/2000. 30
justified by the possibility that if no liability were imposed on the economic successor, liabilities and fines would be circumvented altogether. 79 2. Cartel Enforcement The Competition Authority is among the most active national competition law enforcement agencies in Europe in the fight against cartels. In fact, in the last several years, Italy has been by far the most aggressive jurisdiction, other than the U.S. and Canada, in prosecuting international cartels. In 2004, Italy accounted for 35% of the cartels discovered by the “other” national authorities, although its rate of discovery has diminished to about two cases per year since 1999. In 2008 alone, the Competition Authority imposed fines for such violations totalling approximately € 28 million. (a) Agreements Covered (i) Fixing of Prices or Other Contractual Obligations The first example of prohibited agreements listed in Section 2 is the direct or indirect fixing of purchase or reselling prices or any other contractual conditions. 80 The Competition Authority considers price fixing to be a very serious infringement since pricing is an essential form of competition. The Competition Authority’s practice is to strike down any price-fixing agreement related to selling prices, 81 minimum selling prices, 82 maximum 79 The solution adopted by the Competition Authority is in harmony with the EU Courts’ case law. See, e.g., Joined Cases 40, 48, 50, 54-56, 111, 113-114/73, Suiker Unie and Others v. Commission, 1975 E.C.R. 1663. 80 Competition Law, § 2. 81 See, e.g., Federazione Italiana Spedizionieri, 31 Mar. 1993, n. I164, Bulletin 61/1993; Pro.Cal., 22 Jan. 1992, n. I32, Bulletin 10/1992; ANIA, 18 Nov. 1992, n. A30, Bulletin 22/1992; Assicurazioni rischi di massa, 8 June 1994, n. I74, Bulletin 23/1994; BYK Gulden Italia-Istituto Gentili, 25 Feb. 1999, n. I332, Bulletin 8/1999; Istituto Gentili-Merck Sharp & Dohme-Neopharmed-Sigma Tau Industrie Farmaceutiche Riunite-Mediolanum Farmaceutici, 25 Feb. 1999, n. I333, Bulletin 8/1999; Tim-Omnitel Tariffe Fisso Mobile, 28 Sept. 1999, n. I372, Bulletin 39/1999. 82 See, e.g., Consorzio Abruzzo Conglomerati Cementizi, 12 Feb. 1992, n. I15, Bulletin 3/1992; Consorzio Produttori Calcestruzzi Perugia, 12 Feb. 1992, n. I16, Bulletin 3/1992; Consorzio Sciacca Terme, 12 Feb. 1992, n. I17, Bulletin 3/1992. 31
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 and 10: 1. Main Legislative Reforms On Marc
Page 11 and 12: In 2006, the Italian Parliament str
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: managers were acquitted. The compan
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
Page 61 and 62: Given the alternative nature of the
Page 63 and 64: • the existence of barriers preve
Page 65 and 66: sophistication of the product, and
Page 67 and 68: (b) Full-Functionality A joint vent
Page 69 and 70: The acquisition by API-Anonima Petr
Page 71 and 72: pending review by the Competition A
Page 73 and 74: • two or more participants to the
Page 75 and 76: (ii) Phase II After opening the in-
Page 77 and 78: Pursuant to Section 19(1) of the Co
Page 79 and 80: 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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