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

A few months after Henkel was decided, the Competition Authority imposed a
significant fine (€ 15.8 million) on Edizione Holding for its failure to comply with an
undertaking given in connection with the 2000 conditional clearance of the Autostrade
acquisition. 280
In 2004, the Competition Authority imposed the highest fine ever under Section 19(1)
of the Competition Law (over € 5 million) on Tetra Pak International SA (“Tetra Pak”) for
its failure to comply with a prohibition decision.
78
281
The Competition Authority concluded
that Tetra Pak, by exercising de facto control over the target company, breached a 1993
decision prohibiting Tetra Park’s proposed acquisition of Italpack S.r.l. (“Italpack”). In
determining the amount of the fine, the Competition Authority took into account not only
the fact that Tetra Pak’s behavior led to the same anticompetitive effects that the Authority
intended to prevent by its 1993 decision, but also the particularly long period of time—
almost ten years—during which the breach had been consummated.
(f) Special Provisions for Unsolicited Takeover Bids
Particular rules apply to concentrations realized through public tender offers. Pursuant
to Section 16(5) and (6) of the Competition Law, the public tender offer must be notified to
the Competition Authority concurrently with its formal communication to the Italian
Securities and Exchange Commission. Moreover, the normally applicable statutory 30-day
term for Phase I is reduced to 15 days.
Finally, pursuant to Section 17(2) of the Competition Law, the Competition Authority
cannot prevent the acquiring undertaking from purchasing the target’s shares, provided that
the voting rights attached to the acquired shares are not exercised.
(g) Confidentiality
Information collected by the Competition Authority is treated as confidential upon
request pursuant to Section 14(3) of the Competition Law and Articles 12 and 13 of Decree
No. 217/1998. The notifying parties may indicate which documents, or extracts thereof, are
to be treated as private and confidential, specifying the reasons why the information
contained in these documents should not be disclosed or published. There is no formal
deadline to communicate a confidentiality request to the Competition Authority. However,
it imposed its undertakings); and (ii) had not given sufficient weight to the modest market effects
caused by Henkel’s violation. Based on the above, the TAR concluded that the appropriate level of
the fine would have been 1% of the turnover of the affected market (i.e., the whole adhesives
business). Interestingly enough, the TAR found that the Competition Authority correctly included in
the relevant turnover the sales of industrial sealing compounds, even if the undertaking breached by
Henkel was not likely to have an impact on this specific segment of the relevant market.
280 Edizione Holding/Autostrade-Concessioni e Costruzioni Autostrade, 12 Dec. 2002, n. C3818D,
Bulletin 50/2002. For the clearance decision, see Edizione Holding/Autostrade-Concessioni e
Costruzioni Autostrade, 2 Mar. 2000, n. C3818, Bulletin 9/2000.
281 Emilcarta/Agrifood Machinery, 29 July 2004, n. C812B, Bulletin 31/2004.