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

(ii) Phase II
After opening the in-depth Phase II investigation, the Competition Authority must
communicate its final decision to the parties and the Minister of Industry and Trade within
45 days. The period can be extended by an additional 30 days whenever the parties fail to
supply information and data that is requested. The Competition Authority sometimes
postpones its decision when the parties offer undertakings or propose to amend their
agreements. 267
When opening an in-depth investigation, the Competition Authority may
simultaneously order the undertakings concerned not to proceed with the concentration until
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the investigation is concluded. In 2002, for the first time since its establishment, the
Competition Authority ordered merging parties not to implement their notified concentration
until the Authority’s final determination. 269
It did so in two cases in which the suspension
order was adopted together with the decisions to open a Phase II in-depth investigation. In
each case, the Competition Authority justified the suspension order on the ground that
consummation of the transaction would have had restrictive effects and would have
irreparably altered the competitive relationships between the companies concerned.
In Phase II, the Competition Authority has the same powers as during proceedings
under Sections 2 and 3 of the Competition Law. Accordingly, the parties enjoy certain
procedural safeguards. The parties have the right to: (i) be heard by the competent
Competition Authority’s officials within the time limit indicated in the decision to open a
Phase II investigation; (ii) obtain a final oral hearing before the Competition Authority’s
Board shortly before the end of the investigation; (iii) submit documents and memoranda;
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and (iv) access the Competition Authority’s file.
Access to the Authority’s file is regulated by Article 13 of Decree No. 217/1998.
Documents in the file containing personal, commercial, industrial, or financial information
of a confidential nature are accessible, in whole or in part, only if they include evidence
against the proposed merger or information essential to the parties in arguing and defending
their case.
In line with the European Commission’s practice, the Competition Authority does not
grant access to its notes, proposals, or any other documents drafted by its officials for
internal purposes in the course of the investigation or in preparation of the official
documents relating to the case. In addition, the Authority may choose to deny access to their
267
See Fiatimpresit-Mannesmann-Techint/Italimpianti, 15 Feb. 1996, n. C2227, Bulletin 7/1996 (the
Competition Authority deemed it appropriate to postpone its decision for thirty days to allow the
parties to finalize the undertakings). See also Schemaventuno-Promodès/Gruppo GS, 18 June 1998,
n. C3037, Bulletin 25/1998 (the parties agreed to modify the structure of the proposed concentration
and the Competition Authority postponed its decision to evaluate their new proposal).
268
Competition Law, § 17.
269
See Groupe Canal+/Stream, 28 Feb. 2002, n. C5109, Bulletin 7/2002; Autogrill/Ristop, 24 July
2002, n. C5249B, Bulletin 29/2002.
270
Competition Law, § 14(1).
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