Italy (August 4, 2006)

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Score = 25Governed by: Law no. 287 of October 10th, 1990 - Competition and Fair Trading Act, as amended (Official Gazette no. 240 of 13 October 1990)[1] Law no. 57 of March 5th, 2001 (Section 11) - Provisions governing the opening and regulation of markets (Official Gazzette no. 66 of 20 March 2001)[2] Presidential Decree no. 217 of April 30th, 1998 - Procedure regulations that guarantee to the parties full knowledge of the acts, and minutes taken during hearings, with regard to the activities of the Authority (Official Gazette no. 158 of 9 July 1998).[3]
Category Subcategory Score Comment
Scope Extraterritoriality 0
Remedies Fines 1 Law no. 287, Section 15 allows fines for failure to remedy violations, depending on the gravity and duration of the infringement. Section 19 imposes fines for failure to comply with prohibitions on concentrations or the merger notification requirement. Section 14-bis allows fines if interim measures are ordered but companies fail to comply. Section 14-ter permits fines if ccompanies fail to keep commitments they have made to rectify anti-competitive conduct.
Prison Sentences 0
Divestitures 1 Law no. 287, Section 18(3) permits the Competition Authority to require corrective measures that will restore effective competition.
Private Enforcement 3rd Party Initiation 1 Law no. 287, Section 12(1) allows any interested party to bring infringements to the attention of the Competition Authority.

Law No. 57, Section 11(3-bis) permits the Competition Authority to investigate complaints filed by third parties regarding abuses of economic dependence that may affect competition or a free market.

Remedies Available to 3rd Parties 0
3rd Party Rights in Proceedings 1 Presidential Decree no. 217/98, Section 7(1)(b) permits participation by 3rd parties representing public or private interests, and associations representing consumers that might be directly, immediately and presently damaged by the violations under investigation or by any measures adopted as a result of it. Section 7(2) states that these 3rd parties may produce written submission, documents, arguments and opinions, and also have access to documents, in accordance with Section 13 of the decree (which covers confidentiality).
Merger Notification Voluntary 0
Mandatory 3 Law no. 287, Section 16(1) requires mandatory notification to the Authority of mergers of undertakings whose value or combined values exceed certain levels, which are adjusted each year for inflation.
Pre-merger 2 Law no. 287, Section 16(1) requires notification prior to merger, if the value of the merging undertakings, or their combined value, exceeds set levels that are adjusted annually for inflation.
Post-merger 0
Merger Assessment Dominance 1 Under Law no. 287, Section 6, market dominance is considered before mergers are approved. A merger may not be approved if it will result in market dominance with the effect of eliminating or restricting competition appreciably and on a lasting basis. If it is approved, the Competition Authority may require measures designed to prevent the merger from abusing its dominant position.
Restriction of Competition 1 Law no. 287, Section 6(1) requires that the Competition Authority consider whether a merger will result in the restriction of competition, when deciding whether to approve the merger.
Public Interest (Pro D) 1 Section 25(1) permits temporary waivers for mergers that restrict competition when major general interests of the national economy are involved in the process of European integration, provided that competition is not eliminated from the market or restricted to an extent that is not strictly justified by the aforementioned general interests.
Public Interest (Pro Authority) 1 Mergers with companies based in other countries may be prohibited, in order to protect national economic interests, if it is found the other country does not have an adequate and independent competition law and enforcement. Law no. 287, Section 25(2).
Other 0
Efficiency 1
Dominance Limits Access 1 Law no. 287, Section 3(1)(b) forbids use of dominant position to limit or restrict production, market outlets or market access, investment, technical development or technological progress.
Abusive Acts 1 Law no. 287, Section 3(1) prohibits abuse of a dominant position within the domestic market, or a substantial part of it.
Price Setting 1 Law no. 287, Section 3(1)(a) prohibits price setting.
Discriminatory Pricing 1 Law no. 287, Section 3(1)(c) forbids applying to other trading partners objectively dissimilar conditions for equivalent transactions.
Resale Price Maintenance 0
Obstacles to Entry 1 Law no. 287, Section 3(1)(b) prohibits abuse of a dominant position to limit or restrict production, market outlets or market access, investment, technical development or technological progress.
Efficiency Defense 1 Law no. 287, Section 3, prohibits business entities from abusing a dominant position in a market, but not necessarily from occupying such a position.
Restrictive Trade Practices Price Fixing 1 Law no. 287, Sections 2(2)(a) and 3(1)(a) prohibit directly or indirectly fixing or imposing prices.
Tying 1 Law no. 287, Sections 2(2)(e) prohibits tying.
Market Division 1 Market division is not mentioned specifically in the Italian Competition law, however, one of the goals of the law is to prevent any secret cartels or agreements that restrict or distort competition. The Competition Authority's website mentions that market division is one of the types of agreements the law is meant to prevent.[4]
Output Restraint 1 Law no. 287, Section 2(2)(b) prohibits agreements that limit or restrict production, market outlets or market access, investment, technical development or technological progress.
Market Sharing 1 Law no. 287, Section 2(2)(c) forbids anti-competitive agreements to share markets or sources of supplies.
Eliminating Competitors 1 Law no. 287, Section 6(1) requires that the Competition Authority consider whether a merger will result in the elimination of competition in general, but not existing competitors specifically. The Authority must consider market access, ease of market entry, and several other factors related to the structure of that market and the future of competition in that market.
Collusive Tendering/Bid-Rigging 0
Supply Refusal 1 Law no. 287, Section 2 forbids agreements that restrict freedom of competition, including restricting production, market outlets or market access (Section 2(2)(b)), or that apply to other trading partners objectively dissimilar conditions for equivalent transactions (Section 2(2)(d)).
Efficiency Defense 1 Law no. 287, Section 4, allows some anti-competitive agreements to be approved for limited times if they are absolutely necessary to improve market supply, with substantial benefits for consumers.

References

  1. http://www.agcm.it/AGCM_ENG/NORMATIV/E_NORMNA.NSF/b50758bf27025fecc125653d00467db4/d6cd09a87f1832b7802564a000533ce6?OpenDocument
  2. http://www.agcm.it/eng/E7.htm
  3. http://www.agcm.it/agcm_ENG/NORMATIV/E_NORMNA.NSF/3f0c7d0babd6a38bc1256bb800327ceb/89f1b657d76e4b3fc1256bb8003610f6?OpenDocument
  4. http://www.agcm.it/eng/A21.htm