ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
5.6 Issuance of Decisions Issuance of Formal Decision
mentation modalities of the measures in the light of the characteristics of the relevant markets and the parties’ position and comments submitted by com - petitors, customers and other third parties in a market test. In particular, the Authority contacts the parties’ customers and suppliers – whose identity and con - tractual relationships the parties must disclose – to gather data and feedback on the impact of the notified concentration. 5.5 Conditions and Timing for Divestitures Timing for Divestitures For commitments consisting of the divestiture of assets, the divestiture must normally be completed within a period of six-to-12 months from the adoption of the final decision. The purchaser is subject to the Authority’s approval. The deadline is set in the final decision and is normally redacted, for confidentiality reasons, in the publicly accessible version. Closing Before Compliance With Remedies Since Italian law does not impose a general standstill obligation, parties may in principle complete the trans - action before remedies are complied with, unless the Authority has ordered a suspension of the transaction or the decision requires an up-front buyer mechanism (whereby the parties may not complete the notified transaction before signing a binding agreement with a purchaser pre-approved by the Authority) or a fix-it- first mechanism (whereby the parties conclude a bind - ing divestiture agreement with a suitable purchaser already during the merger review procedure). Non-Compliance With Remedies Non-compliance with corrective measures, in whole or in part, may result in revocation of the authorisa - tion and the imposition of financial penalties. In the absence of an express provision, the Authority has held that Article 19 (1) of Law No 287/1990 – which governs sanctions for non-compliance with a pro - hibition decision – also applies to failure to comply with remedies. In particular, the Authority may impose administrative fines between 1% and 10% of the turn - over of the business activities subject to the concen - tration.
A formal decision is issued to the parties in all cases. The decision is communicated to the notifying parties and to the Minister responsible for economic develop - ment. Publication of the Decision A non-confidential version of the decision is subse - quently published on the Authority’s official bulletin (issued weekly) and on its official website, normally within a couple of weeks of its adoption. Press Release On the day the formal decision is adopted, the Author - ity may also issue a press release on its website sum - marising the main contents of the decision. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions Prohibitions and Conditional Clearances Remedies decisions are rare in Italy and outright pro - hibitions even rarer. Over the period 2020–2025, the Authority issued only one prohibition decision – in Enel Produzione / ERG Power (2022), concerning the Sicil - ian wholesale electricity market. In the same period, the Authority adopted approximately 20 conditional clearance decisions, consistently amounting to a low single-digit number each year, across a variety of sec - tors – including, by way of notable example, Intesa Sanpaolo / UBI Banca (banking, 2020), involving the divestiture of over 500 bank branches, and Italgas / 2i Rete Gas (gas distribution, 2025), involving a substan - tial package of structural and behavioural remedies to preserve competition in future concession tenders. Foreign-to-Foreign Transactions None of these cases concerned a purely foreign-to- foreign transaction. While some transactions involved non-Italian parent groups, in each case the transac - tion concerned Italian operating entities, consistent with the nature of the Italian turnover-based notifica - tion thresholds, which primarily capture transactions with a meaningful nexus to the Italian market.
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