Italy/EU, 2005: Difference between revisions

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| Extraterritoriality
| Extraterritoriality
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| 1
| EU law governs whenever conduct has effects on trade between Member States pursuant to Article 3 of Regulation 1/2003.  
| Scope extends to foreign corporations.<ref>Goyder, D. G., EC Competition Law, 4th ed. 2003, at 99.</ref>


|- class="categorydivision"
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| Divestitures
| Divestitures
| 1
| 1
| Article 7 of CR 1/2003 allows for structural remedies.  Italian Law no. 287, Section 18(3), permits the Italian Competition Authority to require corrective measures that will restore effective competition.
| Article 7 of CR 1/2003 allows for structural remedies.


|- class="categorydivision"
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| 3rd Party Rights in Proceedings
| 3rd Party Rights in Proceedings
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| 1
| Article 27(3) of CR 1/2003 affords evidentiary rights to 3rd parties.  Under Italian law, 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) of 217/98 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).
| Article 27(3) of CR 1/2003 affords evidentiary rights to 3rd parties.  


|- class="categorydivision"
|- class="categorydivision"
| Merger Notification<ref>The National Competition Authority will assess mergers under the National Competition Act. If the concentration affects trade between the Member States, the European Commission will assess the merger under Regulation 139/2004. See the coding for the European Commission for those provisions.</ref>
| Merger Notification
| Voluntary
| Voluntary
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| Mandatory
| Mandatory
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| 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.
| Article 7(1) of CR 139/2004 requires notification.<ref>The new merger notification guidelines implemented by Council Regulation 139/2004 give undertakings the ability to request exemption from notification requirements.  However, because a formal request must be submitted and approved in order to gain exemption, the new notification guidelines are encoded here as requiring mandatory pre-merger notification.</ref>
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| Pre-merger
| Pre-merger
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| 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.
| Article 7(1) of 139/2004 requires pre-clearance.
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| Dominance
| Dominance
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| 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.
| Article 2(1) of CR 139/2004 considers dominance.
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| Restriction of Competition
| Restriction of Competition
| 1
| 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.
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
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|-
|  
|  
| Public Interest (Pro D)
| Public Interest (Pro D)
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| 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.
| Article 2(1) of CR 139/2004 considers the development of technical and economic progress.
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| Public Interest (Pro Authority)
| Public Interest (Pro Authority)
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| 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).
| Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
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|  
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| Efficiency
| Efficiency
| 1
| 0
| Article 2(1) of CR 139/2004 allows an efficiency defense.
|  
|- class="categorydivision"
|- class="categorydivision"

Revision as of 20:47, 16 August 2008

Score = 27

Governed by: Articles 81 and 82 of the Treaty on European Union [hereafter EU Treaty], and European Commission Regulations 1/2003 [hereafter "CR 1/2003"] and 139/2004 [hereafter “CR 139/2004], as well as national legislation.[1]

Category Subcategory Score Comment
Scope Extraterritoriality 1 Scope extends to foreign corporations.[2]
Remedies Fines 1 Articles 13 and 19 of CR 1/2003 allow for fines for serious violations of the EU Competition Act.
Prison Sentences 0
Divestitures 1 Article 7 of CR 1/2003 allows for structural remedies.
Private Enforcement 3rd Party Initiation 1 CR 1/2003, Article 12, says that any interested party can bring a violation to the attention of the Authority.
Remedies Available to 3rd Parties 1 CR 1/2003, Article 33, allows 3rd parties to file a civil suit for damages.
3rd Party Rights in Proceedings 1 Article 27(3) of CR 1/2003 affords evidentiary rights to 3rd parties.
Merger Notification Voluntary 0
Mandatory 3 Article 7(1) of CR 139/2004 requires notification.[3]
Pre-merger 2 Article 7(1) of 139/2004 requires pre-clearance.
Post-merger 0
Merger Assessment Dominance 1 Article 2(1) of CR 139/2004 considers dominance.
Restriction of Competition 1 Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
Public Interest (Pro D) 1 Article 2(1) of CR 139/2004 considers the development of technical and economic progress.
Public Interest (Pro Authority) 1 Article 2(1) of CR 139/2004 considers the interests of intermediate and ultimate consumers.
Other 0
Efficiency 0
Dominance Limits Access 1 Article 82(b) of the EU Treaty prohibits abuse of a dominant position.
Abusive Acts 1 Article 82 of the EU Treaty prohibits abuse of a dominant position.
Price Setting 1 Article 82(a) of the EU Treaty prohibits price setting.


Discriminatory Pricing 1 Articles 81(1)(d) and 82(c) of the EU Treaty, prohibit discrimatory conditions.
Resale Price Maintenance 1 Article 81 of the EU Treaty prohibits minimum resale price restrictions.[4]
Obstacles to Entry 1 Article 82 of the EU Treaty prohibits anti-competitive pricing schemes.[5]
Efficiency Defense 0
Restrictive Trade Practices Price Fixing 1 Articles 81(1)(a) of the EU Treaty prohibits price fixing.
Tying 1 Articles 81(1)(e) and 82(d) of the EU Treaty prohibit tying.
Market Division 1 Article 81 of the EU Treaty prohibits customer allocation clauses.[6]
Output Restraint 1 Article 81(1)(b) of the EU Treaty prohibits limiting production.


Market Sharing 1 Article 81(1)(c) of the EU Treaty prohibits market sharing.
Eliminating Competitors 1 Article 81(1) of the EU Treaty prohibits agreements that have the purpose or effect of eliminating competition.
Collusive Tendering/Bid-Rigging 1 Article 81 of the EU Treaty prohibits bid-rigging.
Supply Refusal 1 Article 81(1)(b) of the EU Treaty prohibits supply refusal.
Efficiency Defense 1 Article 81(3) of the EU Treaty allows an efficiency defense.

References

  1. ↑ EU statutes and regulations available online from the European Competition Network, at http://ec.europa.eu/comm/competition/ecn/documents.html
  2. ↑ Goyder, D. G., EC Competition Law, 4th ed. 2003, at 99.
  3. ↑ The new merger notification guidelines implemented by Council Regulation 139/2004 give undertakings the ability to request exemption from notification requirements. However, because a formal request must be submitted and approved in order to gain exemption, the new notification guidelines are encoded here as requiring mandatory pre-merger notification.
  4. ↑ EC Competition Law, at 97.
  5. ↑ Id, at 283.
  6. ↑ Id, at 97.
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