ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
5.3 Legal Standard Applicable Standard
prohibition is issued, the Authority may prescribe the measures necessary to restore conditions of effec - tive competition and eliminate the distortive effects already produced. Remedies are discussed in 5.2 Par- ties’ Ability to Negotiate Remedies . 5.2 Parties’ Ability to Negotiate Remedies Legal Basis for Remedies Under Article 6 (2) of Law No 287/1990, if at the end of Phase II the Authority finds that the concentration is capable of significantly and durably obstructing competition, it may either prohibit it or authorise it “prescribing the necessary measures to prevent such consequences”. Remedies Offered by the Parties These measures are usually offered by the parties; the Authority, having assessed their adequacy, imposes an obligation to comply with them as a condition for authorisation. The remedies therefore form an inte - gral part of the final decision. The possibility for the Authority to unilaterally impose corrective measures, including measures that are different from or addi - tional to those offered by the parties, is discussed in 5.4 Negotiating Remedies With Authorities . Structural and Behavioural Remedies Remedies may be structural (typically the divestiture of business assets, business units or subsidiaries) or behavioural (such as commitments by the acquiring company to act in a certain manner). Despite a prefer - ence for structural remedies, the Authority frequently deems behavioural measures appropriate to prevent the restrictive effects of concentrations, especially (but not only) in vertical mergers. In practice, the competitive concerns associated with a concentra - tion may often be resolved by combining structural
There are no Authority guidelines on merger remedies. The Authority tends to follow the indications of the European Commission’s Remedies Notice. Requirements for Acceptance To be accepted, remedies must satisfy two basic con - ditions: (i) they must entirely eliminate the Authority’s competition concerns and (ii) they must be capable of being implemented effectively within a short period of time. In compliance with the principle of propor - tionality, the remedies must address the identified anti-competitive concerns (suitability) and must not exceed what is necessary to remedy them (necessity). Burden of Proof It is the parties’ burden to demonstrate that the pro - posed remedies are adequate. 5.4 Negotiating Remedies With Authorities Timing of Remedies Law No 287/1990 does not formally allow the Author - ity to accept commitments already in Phase I, but only in Phase II. In practice, where concerns arise in Phase I, parties may address them by withdrawing the notifi - cation and re-notifying a modified transaction in light A key feature of the Italian system is that the Authority may not only accept remedies offered by the parties but may also unilaterally impose corrective measures, including measures that are different from or addition - al to those offered by the parties. This power derives from Article 6 (2), which expressly allows the Authority to “prescribe the necessary measures” to prevent the restrictive consequences of the concentration. If the Authority unilaterally imposes measures or modifies those offered, the notifying party remains free not to complete the transaction, subject to any inter-party agreements that require closing regardless. Interaction With the Authority and Third Parties In practice, interaction with the Authority’s officials can be intensive, particularly when commitments are presented or modifications to them are discussed. The Authority examines the nature, scope and imple - of the objections raised by the Authority. Authority’s Power to Impose Measures
and behavioural remedies. Non-Competition Issues
Remedies are not required to address non-competi - tion issues. That said, Article 25 of Law No 287/1990 allows, at least in theory, for some exceptions. See 4.6 Non-Competition Issues for details.
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