ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
ited, provided that competition is not eliminated from the market or restricted to an extent that is not strictly justified by the pursuit of the above- mentioned major interests. Even then, the Authority retains the right to impose such measures as are necessary to re-establish conditions of full compe - tition within a prescribed period; • Article 25 (2) of Law No 287/1990 also permits the President of the Council of Ministers to prohibit, for essential reasons of national economy, concentra - tions involving undertakings from jurisdictions that do not provide equivalent protection for the inde - pendence of undertakings under their laws or that apply discriminatory measures or impose clauses having similar effects in respect of acquisitions by Italian undertakings; and • pursuant to Article 20 (5)bis of Law No 287/1990, at the request of the Bank of Italy, the Authority may authorise a concentration involving banks or banking groups that creates or strengthens a dominant position, where this is necessary in the interests of the financial stability of one or more of the parties involved. The authorisation may not, however, permit any restriction of competition that is not strictly necessary to achieve that objective. To date, it seems that only the first of these provisions has ever been applied, and even then on just a single occasion – in the Compagnia Aerea Italiana / Alitalia Linee Aeree Italiane – Airone case, which concerned the 2008 reorganisation of the Italian air carrier Alitalia pursuant to Law-Decree No 134/2008. For details on foreign direct investment screening, see 9.1 Legislation and FIling Requirements . 4.7 Special Consideration for Joint Ventures The Authority’s review of full-function joint ventures includes specific considerations regarding potential co-ordination effects between the parent companies. In particular, the Authority’s notification form requires the notifying parties to: • disclose overlapping or related activities: the parties must indicate whether one or more of the parent companies retain significant activities in the same market as the joint venture, or in a market that is upstream, downstream or closely related to
that of the joint venture. If so, the parties must pro - vide, for each such market: (i) the turnover of each parent company in the preceding financial year; (ii) the economic significance of the joint venture’s activities relative to its turnover; and (iii) the market share of each parent company; and • assess the absence of co-ordination risks: the par - ties must explain whether, in their view, the creation of the joint venture does not have the effect of co- ordinating the competitive behaviour of independ - ent undertakings in a manner that would constitute a restriction of competition within the meaning of Article 2 (2) of Law No 287/1990 or Article 101 (1) TFEU, and set out the reasons for that assessment. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions Substantive Test Under Article 6 (1) of Law No 287/1990, the Author - ity assesses whether a concentration would “obstruct effective competition in the national market or in a rel - evant part thereof in a significant manner, in particular due to the creation or strengthening of a dominant position” – a standard aligned with the EU SIEC test. Review Procedure and Decision-Making Powers As discussed in 3.7 Review Process , the procedure is two-fold. In Phase I, the Authority may either clear the transaction, decide not to open an investigation, refer the case to the European Commission or open Phase II if it considers that the transaction may raise competition concerns. The Authority cannot prohibit a concentration in Phase I. If the Authority considers that the transaction may need to be prohibited or authorised subject to rem - edies, it must open a Phase II investigation. When opening Phase II, the Authority may also order sus - pension of the transaction pending completion of the review. At the end of Phase II, the Authority may either clear the concentration unconditionally, authorise it sub - ject to remedies or prohibit it. If the transaction has already been implemented, in whole or in part, when a
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