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- Merger Control Regime
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1.1 Membership of Supranational Organization
1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?
Italy is a member of the European Union.
1.1.2 Is the jurisdiction itself a supranational jurisdiction?
1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?
Transactions falling under the jurisdiction of the European Commission pursuant to the EU Merger Regulation are exempt from notification in Italy. In such cases, the Italian competition authority is as a general rule precluded from applying the Italian merger control rules to the transaction.
This is known as the "one-stop-shop" principle.
2. Nature of merger control regime
2.1 Mandatory or voluntary
2.1.1 Is filing mandatory or voluntary?
Filing is mandatory.
2.2 Suspensory effect
2.2.1 Must completion of the transaction await clearance by the relevant authorities?
There are no sanctions for closing before clearance provided completion occurs after a complete notification has been submitted.
Transactions that are closed prior to clearance are invariably subject to onerous hold separate obligations various antitrust risks if they are not cleared by the Italian Antitrust Authority.
The risks/consequences are primarily borne by the acquirer unless the parties have specifically agreed otherwise.
1. What type of transactions are caught by the merger control regime?
1.1.1 Type of transactions that are caught by the merger control rules?
The following transactions are subject to merger control:
- mergers between two or more undertakings;
- acquisitions by which an undertaking or a person already controlling an undertaking acquires sole or joint control over the whole or parts of another undertaking; and
- the formation of joint ventures where two or more undertakings form a “concentrative” joint venture through the establishment of a new company (see Section 1.2.1 for more information).
The following sector-specific exemptions apply, however:
- Acquisitions of shares by banks or other financial institutions, solely for resale, including new issue, provided the acquiring banks/institutions do not exercise any voting rights attaching to the shares and divest the shares within 24 months of the acquisition; and
- Mergers or acquisitions with/of companies that do not carry out any economic activity and do not have any direct or indirect control over another undertaking, nor hold licenses, permits, concessions, or any other rights that would allow them to engage in business activities, nor have direct or indirect control over another undertaking holding any of those rights.
1.2 Joint ventures
1.2.1 What types of joint ventures are caught by the merger control rules?
There is a distinction between “concentrative” and “cooperative” joint ventures.
Concentrative joint ventures must be filed for merger clearance if the jurisdictional thresholds are triggered. Filing of corporative joint ventures is voluntary.
Concentrative joint ventures:
The establishment of a joint venture through incorporation of a jointly controlled undertaking or acquisition of joint control over a previously existing undertaking is concentrative, i.e. caught by the merger control rules, provided that:
- it is a joint venture performing on a lasting basis all the functions of an autonomous economic entity resulting in permanent structural market change, i.e. a so-called "full-function" joint venture; and
- the main object or effect of the joint venture is not to coordinate the competitive behavior of the parent companies.
Cooperative joint ventures:
A full-function joint venture is “cooperative” if both parents will remain actual or potential competitors in the same geographical and product market as the joint venture, or in a market that is upstream or downstream or neighboring to that of the joint venture, subject to if certain conditions.
‘Cooperative joint ventures’ are subject to the rules on restrictive practices. The competition act prohibits agreements and concerted practices between undertakings that have as their object or effect a substantial restriction of competition in the national market or in a substantial part thereof. The rules are similar to those in article 101 of the Treaty on the Functioning of the European Union.
The parties may apply for a clearance for a limited period of time under the voluntary filing scheme, provided there is no EU dimension to the joint venture, i.e. it is a purely Italian cooperative joint venture.
1.3 Definition of "control"
1.3.1 How are the concepts of "control" and "change of control" defined?
The definition of control substantially corresponds to the definition of control applicable under the EU Merger Regulation.
Control is defined as:
- the ability to control, directly or indirectly, including through fiduciary companies, the majority of votes at the general meeting;
- having directly or indirectly, including through fiduciary companies, sufficient voting rights to exercise a dominant influence at the general meetings;
- having dominant influence over another company by virtue of contract;
- any other ability to a decisively influence an undertaking by legal rights or factual circumstances (including jointly with another party), e.g. ownership or other rights over the assets or part of the assets of the undertaking, and any rights, contracts or other relationships that confer a decisive influence in determining the composition, resolutions or decisions of the corporate bodies of an undertaking.
1.4 Minority shareholdings
1.4.1 Are minority and other interests less than control caught by the merger control rules?
Acquisition of a minority or other interest that does not lead to an acquisition of control is not caught by the merger rules.
However, a minority interest giving the capability of exercising control, through contractual rights for instance, over the undertaking concerned is caught by the merger control rules regardless of whether control is actually being exercised.
An examples hereof would be a minority interest that confers joint control over the acquired undertaking if, by virtue of the provisions of a shareholders’ agreement or through other contractual or de facto mechanisms, the holder of the minority interest can exercise veto powers over certain “strategic” decisions of the acquired company.
2. Establishing jurisdiction for notification of mergers
2.1 Merging parties/undertakings concerned
2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.
In a merger, the undertakings concerned are each of the merging entities.
In an acquisition of control, the undertakings concerned may vary depending on the characteristics of the transaction:
- In case of acquisition of sole control, the undertakings concerned are the acquiring undertaking consisting of all entities belonging to the same group (i.e. parent, subsidiaries, sister companies etc.) and the target undertaking (i.e. not including the seller)
- In case of acquisition of joint control of a newly created joint venture, the undertakings concerned are each of the undertakings jointly acquiring control. The same applies where one undertaking contributes a pre-existing subsidiary or a business (over which it exercises sole control) to a newly created joint venture.
- In case of acquisition of joint control over a pre-existing undertaking or business, the undertakings concerned are each of the undertakings acquiring joint control and the target (the joint venture).
- In case where a pre-existing, full-function joint venture acquires control over another undertaking, the undertakings concerned are the joint venture (i.e. not including the parent companies, although their turnover should be included in the turnover calculation) and the target undertaking. Where a joint venture is mere acquisition vehicle, the undertakings concerned are in such situation the parent companies to the joint venture and the target undertaking.
- In case of change from joint control to sole control, the undertakings concerned are the undertaking acquiring the sole control and the target. The "existing" shareholder(s) (i.e. the seller(s)) is not considered an undertaking concerned.
2.3 General thresholds
Merger control filing is required when:
- all the undertakings concerned achieved an aggregate turnover in Italy exceeding EUR 504,000,000 in the last financial year; and
- each of at least two of the undertakings concerned achieved a turnover in Italy exceeding EUR 31,000,000 in the last financial year.
2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)
There are a number of sector specific merger control rules under Italian law requiring filing:
- Cinema services: acquisitions causing an incremental increase of the market share of the undertakings concerned of more than 25% in one of the main Italian cities.
- Transactions involving the following sectors: communication, critical technology and infrastructure, national defense and security, transportation and the energy sector.
2.5 Foreign-to-foreign mergers
2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?
Foreign-to-foreign mergers are notifiable in Italy if the jurisdictional thresholds are triggered.
3. Calculation and allocation of turnover, asset value, transaction value etc.
3.1 Relevant turnover
3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?
The relevant turnover to be taken into account is the net turnover derived from the sale of products and the provision of services falling within the undertakings' ordinary activities after deduction of value added tax and other taxes directly related to the sales.
3.7 Special rules
3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?
In the case of banks and financial institutions dealing in securities investment, asset management, consumer credit or leasing, turnover is calculated as the value of one-tenth of the undertaking’s total assets, excluding memorandum accounts.
In the case of insurance companies, the value of premiums collected is excluded from turnover.
1. Practical information
1.2 Deadlines for filing
1.2.3 What are the sanctions for not filing a notifiable transaction?
Failure to notify a transaction that requires notification is sanctionable by a fine of up to 1% of the undertaking’s turnover in the preceding financial year.
and last updated on 18-01-2021 by
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