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

customer lists and price lists were then distributed to all the pharmaceutical companies,
which would in turn discuss these lists and decide which of the cartel members should be
awarded which tender. According to the Competition Authority, the market sharing scheme
was carried out mainly through bilateral meetings and contacts aimed at maintaining a
balance with regards to the companies’ respective client bases.
(b) Exemption from Prohibition
According to Section 4(1) of the Competition Law, the Competition Authority may
authorize, for a limited period of time, agreements restraining competition provided that
these agreements:
“Have the effect of improving the conditions of supply in the market, leading
to substantial benefits for consumers. Such improvements shall be identified
taking also into account the need to guarantee the undertakings the necessary
level of international competitiveness and shall be related, in particular, to
increases of production, improvements in the quality of production or
distribution, or to technical and technological progress. The exemption may not
permit restrictions that are not strictly necessary for the purposes of this
subsection, and may not permit competition to be eliminated in a substantial
part of the market”.
In any case, the benefits to consumers must outweigh the negative consequences that the
agreement could produce. 124
Section 4(1) also provides that the Competition Authority may exempt categories of
agreements from Section 2 by decision. So far, however, the Competition Authority has not
exempted any categories of agreements and has applied Section 4 in only a few cases.
Section 13 of the Competition Law provides for the possibility to file voluntary
notification with the Competition Authority, with a view to obtaining:
• a negative clearance (i.e., a formal decision confirming that the notified agreement
does not restrict competition within the meaning of Section 2 of the Competition
Law); or
• an individual exemption (i.e., a formal decision granting an exemption based on
Section 4 of the Competition Law).
Following the adoption of Regulation (EC) No. 1/2003 that, inter alia, eliminated the
possibility to file voluntary notifications with the European Commission, the national
legislator has not introduced a similar change in the Italian antitrust regime, by repealing
Section 13 of the Competition Law. 125
However, in its decisional practice, the Authority
declares Section 13 notifications inadmissible, arguing that the notified agreement may
124
Ristrutturazione Rete Distributori Carburante, 26 June 1993, n. I53, Bulletin n. 14/1993.
125
This provision provides for the possibility to file voluntary notifications with the Competition
Authority, in connection with agreements falling within the scope of §§ 2 and 4 of the Competition
Law.
39