ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
In public takeover bids, however, if the Authority opens Phase II and orders suspension, the acquirer may still implement the bid provided it does not exercise voting rights attached to the acquired securities. 2.15 Circumstances Where Implementation Before Clearance Is Permitted As discussed in 2.2 Failure to Notify , closing before clearance is generally permitted once the transaction has been notified, unless the Authority has imposed a specific suspension order in Phase II. If the Authority has imposed a suspension order in Phase II, a carve-out or hold-separate arrangement is not automatically available. The parties would need to ensure that the Italian business/assets are not trans - ferred, integrated or otherwise brought under the pur - chaser’s control pending clearance, and that no vot - ing rights, governance rights or decisive influence are exercised in relation to them. Given the absence of a general statutory safe harbour, the parties should dis - close the proposed ring-fencing arrangements to the Authority before global closing and seek confirmation that they are compatible with the suspension order. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification Italian merger control does not impose a fixed filing deadline by reference to signing or any other transac - tion milestone. The parties must notify before imple - mentation but have flexibility as to timing, which is usually driven by the transaction timetable and the expected duration of the Authority’s review. Accord - ingly, there is no penalty for failing to file within a specific number of days after signing; the relevant infringement could only be failure to notify before implementation (see 2.2 Failure to Notify ). 3.2 Type of Agreement Required Prior to Notification A binding agreement is not required before notification. A filing may be made once the parties have reached a sufficiently concrete agreement on the essential terms of the transaction, enabling the Authority to assess the concentration and its competitive effects.
This may include a memorandum of understanding, letter of intent, term sheet or similar document. As discussed in 3.8 Pre-Notification Discussions With Authorities , parties may also engage in informal pre-notification contacts with the Authority before fil - ing. 3.3 Filing Fees There are no filing fees for merger notifications in Italy, irrespective of the transaction’s size or complexity. This should be distinguished from the general annu - al contribution to the Authority’s operating costs imposed on companies exceeding a certain turnover threshold, which is unrelated to individual merger fil - ings. 3.4 Parties Responsible for Filing In an acquisition of control, the acquirer files. In a merger, each merging entity is responsible for filing; the notification is usually filed jointly. In a joint venture, each parent acquiring joint control is responsible for filing. In a public bid, the bidder files, subject to the timing rules set out in 3.7 Review Process . 3.5 Information Included in a Filing Information Required Merger notifications must be submitted using the form prescribed by the Authority. The filing must describe the parties, the transaction structure, the nature of control acquired, the undertakings concerned, turno - ver data, ownership and governance links, and the rel - evant markets potentially affected by the transaction. The level of detail depends on the complexity of the case. Where the transaction does not raise material competition issues, the filing may be relatively con - cise. Where affected markets are identified, or where the transaction involves overlaps, vertical links, poten - tial competition, innovation issues or significant mar - ket positions, the filing must include a more detailed description of market definitions, market shares, competitors, customers, suppliers, entry barriers and competitive dynamics.
336 CHAMBERS.COM
Powered by FlippingBook