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

the merged entity would have held a 76.4 percent share in a relevant market characterized by
high entry barriers.
Where one of the merging parties already holds a dominant position, even a slight
increase in its market share is likely to raise competitive concerns. In Emilcarta/Agrifood
Machinery, 300
for example, the Competition Authority prohibited the proposed
concentration because, by increasing its market share from 80 to 86 percent and eliminating
one of the four players in the market, the acquirer would have strengthened its dominant
position.
Transactions resulting in market shares slightly below 70 percent are also subject to
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very strict scrutiny. In Baxter/Clark, despite the fact that Baxter would have achieved a
60-70 percent market share in the peritoneal dialysis (“PD”) market, the Competition
Authority unconditionally cleared the transaction concluding that Baxter’s dominance did
not significantly reduce competition in a long-lasting manner. The Competition Authority’s
conclusion was based on a number of considerations: (i) Baxter’s market share significantly
diminished in the previous seven years (from 70-80 to 40-50 percent), showing that the
Italian PD market was highly competitive; (ii) the tender procedures adopted by major
clients (public hospitals and local health care public service bodies) guaranteed market
access to minor competitors whose products were highly competitive in terms of both price
and quality; (iii) the technological entry barriers could be overcome by major operators due
to the latter’s great economic strength; (iv) potential competition from major PD producers
at the international level and from operators in the contiguous market for hemodialysis
treatment; and (v) the growth potential of the Italian PD market.
In one instance, the Competition Authority prohibited two parallel transactions where
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the resulting entity would have had a market share below 60 percent. In Italtel/Mistel and
Italtel/General 4 Elettronica Sud, 303
the Competition Authority stated that it could not allow
a concentration where an undertaking would experience an increase in market share from 35
to 51 percent, with the remaining competitors each holding a market share below 20 percent.
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In R.T.I./Europa TV, the Competition Authority authorized the acquisition of Europa
TV’s digital video broadcasting assets and related business contracts by Reti Televisive
Italiane S.p.A. (RTI), a company wholly owned by Mediaset, which controls three of Italy’s
most important free-to-air TV channels. RTI’s plan was to develop a multiplex that uses
digital video broadcasting-handheld (DVB-H) technology, which would allow RTI to
deliver multimedia and broadcast content, including videos, to mobile phones. The
Competition Authority’s investigation revealed that, post-merger, RTI would have increased
its market share in the Italian digital video broadcasting market (the relevant market) to 47.5
percent, while the market shares of its competitors would have been significantly lower.
Notwithstanding the above, the Competition Authority cleared the transaction, on grounds
that it did not give rise to the creation of a dominant position. Indeed, in the Competition
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Emilcarta/Agrifood Machinery, 6 Aug. 1993, n. C812, Bulletin 20-21/1993.
301
Baxter/Clark, 22 Dec. 1997, n. C2850, Bulletin 52/1997.
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Italtel/Mistel, 10 Dec. 1992, n. C574, Bulletin 23/1992.
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Italtel/General 4 Eletronica Sud, 10 Dec. 1992, n. C574, Bulletin 23/1992.
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R.T.I.-Reti Televisive Italiane/Europa TV, 16 Apr. 2006, n. C7493, Bulletin 13/2006.
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