ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
• the target is a start-up or new operator with signifi - cant competitive potential that has not yet devel - oped or adopted a business model generating significant revenues (or is still in the early stages of implementing such a model). De Minimis Level In cases where the parties’ activities overlap, Italian law does not establish a formal de minimis threshold below which competitive concerns are presumed not to arise. However, in practice, the Authority gener - ally follows the European Commission’s approach, according to which horizontal overlaps resulting in combined market shares below 25% are unlikely to give rise to competition concerns, absent specific cir - cumstances indicating otherwise. 4.3 Reliance on Case Law Other than on its own precedents and Italian admin - istrative case law, the Authority regularly draws on the case law and decisional practice of the European Commission, particularly with regard to market defini - tions, substantive assessment criteria, and the analyti - cal framework for evaluating concentrations. While the European Commission’s practice remains the primary reference point, it is not excluded that the Authority may also take into account precedents from other jurisdictions where relevant to the case at hand, including other member states of the European Union. 4.4 Competition Concerns The Authority’s substantive assessment of concentra - tions is generally aligned with the EU merger control framework and the European Commission’s practice. As such, the Authority may investigate the full range of competition concerns typically considered under EU merger control. These include unilateral effects (ie, whether the merged entity would be able to profitably raise prices or reduce output independently of its competitors) and co-ordinated effects (ie, whether the transaction would make it easier for the remaining market players to co-ordinate their competitive behaviour, whether explicitly or tacitly).
The Authority may also assess vertical concerns (eg, input or customer foreclosure), conglomerate or portfolio effects (eg, leveraging or bundling strategies across related markets). 4.5 Economic Efficiencies Parties may submit efficiency arguments in the con - text of merger review. Indeed, the Authority’s notifica - tion form includes a dedicated, although voluntary, section in which parties are invited to: • describe each expected efficiency gain (including cost savings, introduction of new products, and service or product improvements); • explain in detail how the transaction would enable such gains; • quantify the efficiencies where possible, distin - guishing between one-off fixed-cost savings, recurring fixed-cost savings and variable cost sav - ings; • demonstrate the extent to which customers would benefit from such efficiencies; and • explain why the same efficiencies could not be achieved through less anti-competitive means (ie, that they are merger-specific). However, while the Authority will assess duly substan - tiated efficiency claims, to date, no efficiency submis - sion has been considered sufficient by the Authority to outweigh serious anti-competitive concerns, on the grounds that the efficiencies were either insufficiently substantiated, not merger-specific or otherwise inef - fective. 4.6 Non-Competition Issues As a general rule, the Authority does not take non- competition issues into account in its merger review. The assessment is focused on the effects of the trans - action on competition in the relevant markets. That said, non-competition considerations may come into play in specific contexts: • in exceptional cases, where major general national interests are involved in the process of European integration, Article 25 (1) of Law No 287/1990 empowers the Italian government to lay down gen - eral criteria to be used by the Authority to authorise concentrations that would otherwise be prohib -
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