ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
2.9 Market Share Jurisdictional Threshold Italian merger control does not include a market share- based jurisdictional threshold. 2.10 Joint Ventures Joint ventures are subject to Italian merger control where they constitute a concentration within the meaning of Law No 287/1990 and the applicable juris - dictional thresholds are met. This is the case where two or more undertakings create a joint venture that performs, on a lasting basis, all the functions of an autonomous economic entity. The Authority follows the criteria applied under EU merger control. A joint venture is therefore notifiable only if it is “full-function”. This requires an assessment of whether the joint venture has the resources and operational autonomy necessary to act independently on the market. Relevant factors include whether the joint venture has its own management, personnel, financing, assets and access to the market, and whether it conducts activi - ties on a durable basis. A joint venture that merely performs an auxiliary function for its parents, or sells to or purchases from them on a non-market basis, will generally not be full-function. If a joint venture is not full-function, it is not a report - able transaction under Italian merger control rules, although the arrangements between the parents may still need to be assessed under rules on restrictive agreements. 2.11 Power of Authorities to Investigate a Transaction Call-In Powers The Authority may require notification of a concentra - tion that does not meet the ordinary Italian turnover thresholds. This call-in power applies where three cumulative conditions are met: • at least one of the two ordinary Italian turnover thresholds is exceeded, or the aggregate world - wide turnover of all undertakings concerned exceeds EUR5 billion; • the transaction may raise concrete risks for com - petition in the Italian market, or in a substantial
part of it, including possible adverse effects on the development of small undertakings characterised by innovative strategies; and • no more than six months must have elapsed since completion of the transaction. Where these conditions are met, the Authority may require any of the undertakings concerned to notify the transaction within 30 calendar days. This period may be extended in exceptional circumstances upon a reasoned request by the parties. Application in Practice The Authority has already used these powers in prac - tice. The regime has been applied not only in innova - tion-driven sectors, but also in more traditional mar - kets. A notable example is the acquisition of Israeli start-up Run:ai by global chips manufacturer NVIDIA, which the Authority called in and then referred to the European Commission in 2024. Limitation Period The call-in power is limited to six months after com - pletion. 2.12 Requirement for Clearance Before Implementation As discussed in 2.2 Failure to Notify , Italian merger control requires prior notification but does not impose a general obligation to suspend implementation until clearance. The parties may generally close after noti - fication, unless the Authority imposes a specific sus - pension order upon opening Phase II. 2.13 Penalties for the Implementation of a Transaction Before Clearance As discussed in 2.2 Failure to Notify , implementation before clearance is not prohibited if the transaction has been duly notified. Penalties may arise for fail - ure to notify before implementation, or for breach of a specific suspension order imposed by the Authority in Phase II. 2.14 Exceptions to Suspensive Effect Since Italian merger control does not impose an auto - matic suspensive effect (see 2.2 Failure to Notify ), waivers or derogations are generally unnecessary.
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