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

in Airtours. 324
Based on the above, the transaction was cleared subject only to a number of
behavioral remedies, including Numico’s undertaking to lower its prices for baby milk
products and significantly increase distribution through “low-priced” retail outlets (i.e.,
supermarket chains and baby stores), as opposed to the “highly priced” pharmacies.
Another interesting application of the Airtours case law is represented by the
Generali/Toro case (Generali and Toro Assicurazioni are the two major providers of non-
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life insurance in Italy). This case also shows the particular attention that the Competition
Authority pays to the antitrust implications of the network of structural, economic, and
personal links that traditionally characterizes the banking and insurance sectors in Italy. In
this case, the Competition Authority’s analysis of the structural, economic, and personal
links was twofold, and can be summarized as follows.
First, the Competition Authority concluded that Mediobanca exercised de facto control
over Generali. This conclusion was grounded mainly on the following considerations: (i)
Mediobanca usually represented about one-third of the share capital present at the
shareholders’ meeting and (ii) Unicredito and Capitalia (two other major shareholders of
Generali) were also the major shareholders of Mediobanca as well as parties to the
shareholders agreement of such bank and a consultation agreement concerning Generali.
Together with Unicredito and Capitalia, Mediobanca was therefore able to exercise the
majority of voting rights usually represented in Generali’s shareholders’ meeting, while the
remaining shareholders did not hold significant shares and were mainly institutional
investors (as such, they normally followed the major shareholder’s vote). In light of the
above, the Competition Authority concluded that in Generali there were no shareholders’
meeting majorities alternative to that of Mediobanca.
Furthermore, the Competition Authority carried out an extensive analysis of the strong
links between Generali/Mediobanca and FonSai, another important player in market for nonlife
insurance. Such analysis focused on, inter alia, the following aspects:
(i) FonSai held a number of “strategic” minority stakes in Generali (2.4 percent) as
well as in the share capital of Mediobanca and Capitalia;
(ii) FonSai had a relevant exposure to the performance of Generali because FonSai’s
direct and indirect stake in Generali represented 22 percent of the whole
capitalization of FonSai and 47 percent of the whole investment of Premafin, the
company controlling FonSai, in such company;
(iii) FonSai’s stake in Generali was not merely “financial” given that FonSai:
• planned to have representatives in Generali’s board of directors;
324 Case T-342/99, Airtours v. Commission, 2002 E.C.R. ΙΙ-2585. In this leading case, the Court ruled
that a concentration in a highly transparent and concentrated market is able to create collective
dominance when: (i) the undertakings have an incentive, as well as the necessary capacity, to
cooperate; (ii) adequate deterrents guarantee the maintenance of a long-term incentive not to depart
from the commonly pursued policy; and (iii) the undertaking does not have any actual or potential
competitors, let alone customers or consumers, who are able to react effectively.
325 Assicurazioni Generali/Toro Assicurazioni, 4 Dec. 2006, n. C7951, Bulletin 47/2006. In this case,
the transaction originally fell within the scope of the EC Merger Regulation. However, Generali
obtained the referral of the case to the Authority pursuant to Article 4(4) of said regulation.
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