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

the durable anticompetitive effects of the transaction through an adequate set of
undertakings.
(i) Sanctions for Failure to Notify
Pursuant to Section 19(2) of the Competition Law, failure to notify a reportable
transaction may result in a fine up to 1 percent of the turnover realized in the preceding year
by the responsible undertaking. 286
The analysis of the recent cases relating to failure to notify reveals that the fine imposed
pursuant to Section 19(2) of the Competition Law amounts to an average of € 5,000. Such a
modest amount reflects a number of mitigating circumstances normally taken into account
by the Competition Authority for the purposes of assessing the gravity of the infringement,
namely: (i) the good faith of the undertaking; (ii) the substantial absence of any
anticompetitive effects arising from the concentration; (iii) the fact that the undertaking
subject to the obligation to notify eventually filed on a voluntary basis a delayed notification
of the concentration; and (iv) the short period of time elapsed between the aforesaid
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notification and the closing of the transaction.
Remarkably, additional reductions of the fine may occur when further particular
circumstances are validly put forward by the undertaking concerned. Indeed, on January 27,
288
2005, the Competition Authority concluded its investigation against Parmalat S.p.A.
(Parmalat) for failing to comply with the filing obligation relating to the acquisition of
Carnini S.p.A. (Carnini). The investigations revealed that, while Parmalat formally withdrew
the notification of the proposed acquisition of Carnini, 289
it implemented the transaction by
means of a nominee company Boston Holdings Corporation. Interestingly, the Competition
Authority sanctioned Parmalat with a symbolic € 1,000 fine, taking into consideration the
delicate financial situation of the company at that time.
The Competition Authority also clarified that failure to comply with the obligation to
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submit a pre-merger filing is a permanent infringement. Accordingly, the five-year statute
286 The Competition Authority took a broad view of the concept of an undertaking’s responsibility in
Nutricia Belgie/Milupa, 4 Nov. 1999, n. C3696, Bulletin 44/99, where it fined Royal Numico Bv, the
Dutch holding of the group, because it maintained that Royal Numico Bv was responsible for
orchestrating the acquisition of control over a rival group (Milupa AG) and because Royal Numico
Bv had handled proceedings before the Competition Authority directly. In Costruzioni
Elettromeccaniche Ascensori Montacarichi-Otis/Varie Società, 28 Jan. 1999, n. C3156B, Bulletin
4/1999, the Competition Authority held that Otis and CEAM were the undertakings responsible
because the concentrations of which the Competition Authority was notified formed part of the Otis
strategy in the relevant markets and the two companies admitted their responsibility for late
notification in their submission.
287 See, e.g., Veolia Propreté/Bartin Recycling, 15 May 2008, n. C9215, Bulletin 19/2008; Alliance
Medical/Linea Medica, 13 Mar. 2008, n. C8980, Bulletin 10/2008.
288 Boston Holdings/Carnini, 27 Jan. 2005, n. C4722B, Bulletin 4/2005.
289 Parmalat/Carnini, 14 Dec. 2000, n. C4236, Bulletin 3/2001.
290 Thüga/Fingas/Sudgas, 1 Aug. 2002, n. C5200, Bulletin 31/2002.
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