ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Ancillary Restraints: Coverage, Assessment and Notification Requirements The Authority’s assessment of a notified transac - tion also covers any related arrangements (ancillary restraints) directly related to, and necessary for, the concentration’s successful implementation based on the principles set out in the relevant Commission’s 2005 Notice on Ancillary Restraints. Though not expressly required by law, the Authority’s notification form requires that the parties to a merger provide a description of such related arrangements and an explanation as to why they should be consid - ered directly related to and necessary for the concen - tration’s successful implementation. When issuing a clearance decision, the Authority typi - cally makes an explicit exclusion of any restrictions not considered ancillary, leaving open the possibility of a separate evaluation of those restrictions. The most common example of restrictive provisions that can be cleared are non-compete clauses. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Interested third parties are not formally entitled to par - ticipate in a Phase I investigation. However, following the publication of a short notice on the transaction on the Authority’s website (see 7.3 Confidentiality ), third parties may submit written observations, which the Authority can take into account in conducting its assessment. By contrast, in a Phase II investigation, interested third parties may file a reasoned application to participate within ten days of the publication of the Authority’s decision to initiate that phase. Once granted permis - sion to participate, a third party may: (i) submit written comments; (ii) access the file, with the exception of
confidential information; (iii) be heard by the Author - ity’s case team and present its arguments orally at the final hearing, if such hearing is requested by the notifying parties. 7.2 Contacting Third Parties The Authority regularly contacts third parties during merger control reviews to gather relevant evidence. Interactions typically take the form of written requests that specify the legal basis, the transaction under review, the information and documents required, and the applicable deadline. In addition, officials may make oral requests during hearings or inspections, if any. The Authority also conducts market tests of proposed remedies. In doing so, it assesses the nature, scope and implementation of these measures in light of the characteristics of the relevant markets and the posi - tion of the parties, taking into account feedback from competitors, customers and other third parties. 7.3 Confidentiality After notification, the Authority publishes a brief summary notice (market notice) on its website. The Authority’s decisions are subsequently published in its weekly bulletin, subject to the removal of information that the parties requested be treated as confidential. 7.4 Co-Operation With Other Jurisdictions The Authority is an active participant in a number of important international bodies, including notably the International Competition Network and the European Competition Network (ECN). In particular, as a member of the ECN, the Authority is required to exchange information and, when neces - sary, to work in close coordination with other member states’ Authorities and/or the European Commission on – inter alia – merger control proceedings. Such co-operation includes exchanging informa - tion about notified transactions, especially in case of cross-border cases triggering multiple reviews. The Authority is, however, bound by professional secrecy and cannot share with other member states’ Authori - ties or with the European Commission information that is confidential unless the parties grant a waiver, as
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