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

which confer a decisive influence over the composition, resolutions or
decisions of the board of an undertaking. Control is acquired by persons or
undertakings or groups of persons or undertakings which: (a) hold the rights,
benefit from the contracts or are parties to the other legal relations mentioned
above; (b) while not being holders of the rights or beneficiaries under the
contracts or parties to the other legal relations mentioned above, have the
power to exercise the rights deriving therefrom”.
According to the Competition Authority, a part of an undertaking is any set of assets
which, as part of the organization of an undertaking, allows for the exercise of economic
activity or which, in any case, produces any turnover. These assets may include goodwill,
contracts, technology, patents, trademarks, or inventory. For instance, the Competition
Authority held that the acquisition of brands or licenses to which a turnover can be clearly
attributed is an “operation of concentration” under merger control rules. 183
Indeed, the Competition Authority has expanded the notion of concentration so as to
include even the acquisition of assets that have never produced a turnover, but will do so
184
following the acquisition. The acquisition of control can be in the form of sole or joint
control. 185
(ii) Acquisition of Sole Control
In Ferrocemento Costruzioni e Lavori Pubblici/Società Italiana per le Condotte
d'Acqua, 186
the Competition Authority held that, although Ferrocemento acquired only 49.9
percent of the voting shares of Condotte from Fintecna, with the latter retaining the other
50.1 percent, Ferrocemento had acquired sole control over Condotte since it had the power
to appoint four of the seven directors and the CEO pursuant to a shareholders agreement.
183 Specifically, in Fater/Procter & Gamble, 21 Feb. 2002, n. C5064, Bulletin 8/2002, the Authority held
that the grant of an exclusive license of a trademark for an undetermined period was a concentration.
See Polymer Latex/BASF, 11 June 1998, n. C3001, Bulletin 24/1998 (concentration consisted of the
acquisition of a ten-year worldwide exclusive license for the manufacture and sale of a number of
chemical products); Sorin Biomedica/Solco Basel, 19 Jan. 1995, n. C1810, Bulletin 3/1995 (transfer
of know-how, technology and a trademark license relating to pharmaceutical products was deemed
to be a concentration).
184
Tamoil Petroli/Impresa Individuale, 22 Dec. 1998, n. C3338, Bulletin 52/1998 (concerning the
acquisition of a gas station under construction).
185
While joint control is exercised where two or more undertakings have the ability to exercise decisive
influence over another undertaking (in particular, joint control may exist if a party has the ability to
prevent the adoption of decisions which significantly influence the commercial activities of the
controlled undertaking, including, for example, through the exercise of a veto right), sole control is
characterized by the fact that the decisive influence is exercised, directly or indirectly, only by one
undertaking.
186
Ferrocemento Costruzioni e Lavori Pubblici/Società Italiana per le Condotte d’Acqua, 28 Apr. 1997,
n. C2732, Bulletin 16/1997.
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