ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
distinct set of rules, discussed in 9.1 Legislation and Filing Requirements .
in powers. This may be useful to reduce uncertainty in cases involving innovative businesses, nascent com - petitors or competitively significant assets. 2.2 Failure to Notify Failure to Notify Failure to notify a concentration that is subject to mandatory notification may give rise to administrative fines. Under Article 19 (2) of Law No 287/1990, where the parties intentionally or negligently fail to notify a concentration before implementation, the Author - ity may impose a fine of up to 1% of the worldwide turnover of the undertaking responsible for the filing in the preceding financial year. In practice, the Authority actively enforces the noti - fication obligation. In setting the amount of the fine, the Authority generally takes into account the relevant factual circumstances, including whether the trans - action raised substantive competition concerns, the duration of the infringement, the parties’ co-operation (including whether the parties voluntarily made a late filing), and the degree of negligence. For instance, in its Esselunga / Co . Ge . Man decision (2013), the Author - ity held that uncertainty as to the legal classification of the transaction was not a valid justification for failure to notify, given that the merger control rules had long been in force and were ascertainable with ordinary diligence. Prior Notification, Rather Than Standstill, Obligation Italian merger control must be distinguished from regimes imposing a full suspensory obligation (so- called standstill obligation). In Italy, notification is compulsory but once the transaction has been noti - fied the parties are generally not required to wait for clearance before closing. In other words, the parties must notify before imple - mentation, but implementation after notification (and before clearance) is not prohibited as such. Suspension During Phase II A standstill obligation may arise only if the Authority opens an in-depth investigation and on that occasion expressly orders the parties not to implement the
1.3 Enforcement Authorities Italian Competition Authority
Italian merger control law is enforced by the Author - ity, which is an independent administrative authority and acts both as investigating authority and decision- maker in merger control proceedings. The Authority is responsible for assessing whether a transaction amounts to a concentration, whether the Italian jurisdictional thresholds are met, whether a notification is required, and whether the transaction may significantly impede effective competition in the Italian market or in a substantial part of it. The Author - ity may clear a transaction, open an in-depth inves - tigation, impose remedies or prohibit the transaction where the legal conditions are met. Sectoral Authorities Other authorities may be involved where the transac - tion concerns regulated sectors. Their role is separate from the Authority’s competition assessment and is generally consultative or regulatory in nature – see 1.2 Legislation Relating to Particular Sectors . Italian merger control is based on a mandatory notifi - cation system. A concentration must be notified to the Authority before implementation where it falls within the scope of Italian merger control and the applicable jurisdictional thresholds are met. Notification may also become mandatory where the Authority exercises its call-in powers for below- threshold concentrations, as discussed in 2.11 Power of Authorities to Investigate a Transaction . Voluntary Communications Although the ordinary Italian merger control regime is mandatory rather than voluntary, parties may inform the Authority of a below-threshold transaction where they consider that it may fall within the Authority’s call- 2. Jurisdiction 2.1 Notification Mandatory Notification
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