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

Italian pay-TV market. Nevertheless, as mentioned above, the Competition Authority
recognized the peculiarities of the Italian pay-TV market and concluded that it was possible
to remove the anticompetitive effects of the operation through an adequate set of remedies.
Among others, these remedies included requirements that Canal+/Telepiù: (i) not enter into
certain premium pay-TV contracts exceeding a specified duration; (ii) relinquish and not reacquire
certain rights on non-satellite transmission platforms; (iii) permit termination of
certain license agreements with major Italian soccer teams and the most important
Hollywood Studios; (iv) divest all assets relating to terrestrial broadcasting; (v) allow
competitors to distribute their pay-TV offers through the new DTH platform; and (vi) grant
to any interested party operating on non-DTH platforms Telepiù’s premium pay-TV offer at
“retail minus” conditions. This overall set of remedies, subjected to extensive market tests
involving a wide range of operators active at different levels in the Italian marketplace, was
considered adequate to reduce the merged entity’s market power and to restore conditions
necessary for effective competition. In particular, in the Competition Authority’s view, the
remedies caused a significant reduction in the barriers to access to the satellite platform, and
also created conditions conducive to the growth of competitors operating alternative means
of transmission (including cable and terrestrial transmission) by granting them access to the
merging parties’ content.
In practice, the burden is on the parties to remove any uncertainties as to the factors that
might cause the Competition Authority to reject the proposed commitment. As shown in BS
Investimenti SGR/Ramo d’azienda di SAFE, 342
342
BS Investimenti SGR/Ramo d’Azienda di S.A.F.E.-Società Autotrasporti Fiduciari Europei, 18 Apr.
2007, n. C8271, Bulletin 14/2007.
96
in complex Phase II investigations the
Competition Authority normally conducts a thorough market test in order to collect
interested third parties’ views as to the adequacy of the proposed set of remedies. In this
case, the transaction was blocked pursuant to Section 18(1) of the Competition Law, because
the acquiring party failed to offer adequate corrective measures. The transaction would have
entailed the acquisition by Sicurglobal S.p.A. (Sicurglobal) of a line of business of Società
Autotrasporti Fiduciari Europei S.p.A. (SAFE). Both Sicurglobal and SAFE were active in
the Italian market for private security services. In the province of Pavia, the merged entity
would have reached a market share exceeding 50 percent. Further sources of concerns were
represented by the high barriers to entry (governmental licenses were required to operate in
the relevant market) and by the fact that the combined entity would have achieved
dominance with respect to the whole range of activities relating to the market for private
security services within that Province. In order to overcome the above competitive concerns,
the parties undertook: (1) to divest a line of business made of contracts with customers
worth € 1,5 million (or, alternatively, decrease the combined entity’s turnover of the
equivalent amount), (2) to hand back to the Prefect of Pavia the governmental licenses
granted to SAFE, and (3) not to increase the number of authorized armed guards and
vehicles operating in the Province beyond the number already available to the combined
entity. However, in the Competition Authority’s view, the above undertakings were no
sufficient since they were merely aimed at impeding a further growth of the combined entity