ITALY Law and Practice Contributed by: Matteo Beretta, Alice Setari, Natalia Latronico and Riccardo Molè, Cleary Gottlieb Steen & Hamilton
they are normally encouraged to do in such cases to facilitate co-ordinated review and consistent out - comes. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review The parties to a concentration have the right to chal - lenge a conditional clearance (if the Authority imposed remedies other than or different from those offered by the parties), the imposition of restorative measures or a prohibition decision before the Lazio Region - al Administrative Court (the “TAR Lazio”). Rulings issued by the TAR Lazio may be further appealed to the Council of State, which serves as Italy’s highest administrative court. 8.2 Typical Timeline for Appeals The timing of judicial review depends on the complex - ity of the case and on whether interim relief is sought. As a general indication, proceedings before the TAR Lazio may take approximately 12 to 24 months. An appeal before the Council of State may take a further 12 to 18 months. Appeals are rare, mostly because the greatest pro - portion of concentrations notified are unconditionally cleared by the Authority. Examples include the following, • In 2007, the Authority authorised the merger between Assicurazioni Generali and Toro Assi - curazioni, subject to a structural remedy (dives - titure of an insurance company), finding that the transaction would create or strengthen a collective dominant position in several non-life insurance markets. The TAR Lazio annulled the decision, upholding the appellant’s argument that a com - bined market share of only 35% was insufficient to establish collective dominance and that the Authority had failed to demonstrate that com - petitors – representing approximately 60% of the market – lacked the ability or incentive to compete effectively. The appeal filed by the Authority before the Council of State was subsequently withdrawn.
• In 2018, Sky Italia notified to the Authority its acquisition of sole control over R2, the digital terrestrial television technical platform previously owned by Mediaset Premium. Following an in- depth investigation, the Authority found that the transaction was capable of restricting competi - tion in the Italian pay-tv market. Although Sky and Mediaset had meanwhile sought to unwind the transaction, the Authority concluded that the operation had already produced irreversible com - petitive effects and imposed behavioural remedies pursuant to Article 18 (3) of Law No 287/1990. On appeal, the TAR Lazio annulled the Authority’s decision, holding, inter alia, that the Authority had assessed a transaction materially different from the one originally notified and had failed adequately to establish the existence of a concentration following the parties’ partial unwinding of the deal. On further appeal, however, the Council of State reversed the TAR Lazio ruling, holding that the partial unwinding had not eliminated the transaction’s anti-competi - tive effects. 8.3 Ability of Third Parties to Appeal Clearance Decisions Under Italian merger control law, third parties whose specific and qualified interests are directly and adversely affected by the measure, may challenge clearance decisions. Italian administrative case law has recognised standing for several categories of third parties, including: • competitors of the decision’s addressee; • contractual counterparties of the addressee; • consumers; and • consumer associations. While the authors are not aware of successful appeals brought by third parties against unconditional clear - ance decisions, there is a small number of instances in which third parties have successfully challenged con - ditional merger clearances. The most recent example is the litigation concerning the Authority’s conditional approval of Ignazio Messina’s acquisition of Terminal San Giorgio, a transaction that had been notified upon call-in by the Authority.
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