Competition Law in Italy The first 20 years of law and practice

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J. Jurisdiction 1. Extraterritorial Application of Law 2. International Agreements & Cooperation 6
I. INTRODUCTION A. General Comparison of Italy’s Competition Laws, Enforcement, Procedures with Those of the United States Law No. 287 of October 1990 1 introduced the first competition rules in Italy. Before 1990, the protection of competition was guaranteed through the application of European Community (EC) competition law and the Civil Code provisions on unfair competition. The Competition Law addresses restrictive agreements, abuse of dominant position, and the creation and/or reinforcement of a dominant position through merger. The crucial interpretative challenge posed by the Competition Law is to define the forms of collective and unilateral conduct that pose unacceptable competitive dangers. The Competition Law proscribes rather than prescribes conduct, and it does not authorize positive administrative regulation of business conduct. For example, the Competition Authority cannot set the price for goods or services. In the past few years, however, independent administrative agencies have been established to monitor prices and contractual conditions in sensitive sectors such as communications and energy. On its face, this legal framework is similar to U.S. competition law. There are, however, significant differences between the Italian and U.S. systems with respect to both the substantive assessment and the applicable procedures. In Italy, the enforcement of the Competition Law is generally entrusted to the Competition Authority (Autorità garante della concorrenza e del mercato). In the banking and insurance sectors, the Competition Authority is responsible for the enforcement of the Competition Law. However, before adopting a final decision concerning undertakings active in these sectors, it must request the non-binding opinion of the Bank of Italy (Banca d’Italia) and of the Insurance Authority (Istituto per la Vigilanza sulle Assicurazioni Private e d’Interesse Collettivo), respectively. Similarly, in the communications field, the Competition Authority must request the non- The Authors would like to thank their colleagues Alessandro Bardanzellu, Luigi Nascimbene, Patrick Marco Ferrari, Luca Crocco, and Gianni De Stefano for their contribution to the drafting of the present publication. A previous version of this publication has been published within “Competition Laws Outside the United States”, 2nd edition, ABA Section of Antitrust Law, January 2011. 1 Law No. 287/1990 of October 10, 1990 [hereinafter Competition Law]. The Competition Law (Norme per la tutela della concorrenza e del mercato) introduced Italy’s first competition rules. 7
Page 1 and 2: Mario Siragusa - Matteo Beretta - M
Page 3 and 4: (c) Cooperation with Other Competit
Page 5: D. Unfair Practices and Other Prohi
Page 9 and 10: 1. Main Legislative Reforms On Marc
Page 11 and 12: In 2006, the Italian Parliament str
Page 13 and 14: domestic law. Moreover, pursuant to
Page 15 and 16: government retains some residual po
Page 17 and 18: Judiciary Council (Consiglio Superi
Page 19 and 20: February 25, 2000 (Decree No. 67/20
Page 21 and 22: 3. Extent to Which Courts Have Embr
Page 23 and 24: (c) Agreements, Decisions, and Conc
Page 25 and 26: Authority’s assessment is not lim
Page 27 and 28: Supreme Administrative Court entire
Page 29 and 30: managers were acquitted. The compan
Page 31 and 32: justified by the possibility that i
Page 33 and 34: The Competition Authority condemns
Page 35 and 36: Inaz Paghe Srl, a supplier of softw
Page 37 and 38: concentration. However, the Supreme
Page 39 and 40: customer lists and price lists were
Page 41 and 42: (iii) Cooperation between the Europ
Page 43 and 44: As of January 30, 2009, the Competi
Page 45 and 46: (ii) The Criteria Used to Determine
Page 47 and 48: of the conduct itself. The Court or
Page 49 and 50: Though the Competition Law has been
Page 51 and 52: extent that, although legally indep
Page 53 and 54: B. Mergers and Acquisitions 1. Tran
Page 55 and 56: In Comifar/Commerciale Farmaceutica
Page 57 and 58:
and despite the fact that Italpack
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Distinction between Concentrative a
Page 61 and 62:
Given the alternative nature of the
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• the existence of barriers preve
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sophistication of the product, and
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(b) Full-Functionality A joint vent
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The acquisition by API-Anonima Petr
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pending review by the Competition A
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• two or more participants to the
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(ii) Phase II After opening the in-
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Pursuant to Section 19(1) of the Co
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no confidentiality request may be s
Page 81 and 82:
of limitations applicable to violat
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(a) Single-Firm Dominance (i) Horiz
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Authority’s opinion, the strong p
Page 87 and 88:
In Pierburg/Magneti Marelli, 314 fo
Page 89 and 90:
electricity sales market. In reject
Page 91 and 92:
in Airtours. 324 Based on the above
Page 93 and 94:
might be exerted by other operators
Page 95 and 96:
considerations that make the issue
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or reducing its actual turnover. In
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Competition Authority, the Court af
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competition rules in cases affectin
Page 103 and 104:
judgment, the Supreme Administrativ
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(i.e., companies with no fewer than
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The first step in analyzing an abus
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Once the Competition Authority has
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Further, when a vendor cannot decli
Page 113 and 114:
Finally, conduct by a dominant firm
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(a) Exclusive Dealing/Single Brandi
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dello Stato 423 and Infocamere/Cerv
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Additionally, a refusal to deal by
Page 121 and 122:
for potential abusive conduct in th
Page 123 and 124:
Following the opening of the procee
Page 125 and 126:
(f) Exploitative Conduct (i) Excess
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granted to travel agents for reachi
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(h) Remedies/Sanctions A 2005 judgm
Page 131 and 132:
The new rules specifically identify
Page 133 and 134:
used similar exclusive distribution
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license for the production in Italy
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(b) Formal & Informal Consultation
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investigation in a market that had
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The Competition Authority’s key i
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Bar is incompatible with, inter ali
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contains the Competitoin Authoritie
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protection, given the imperfect sta
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supply of the wholesale electricity
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The two judgments provide useful cl
Page 153 and 154:
fine based on the association’s r
Page 155 and 156:
2. Independence of the Judiciary Th
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judicial protection. Therefore, per
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with the power to impose ex officio
Page 161 and 162:
fixing agreement may be found liabl
Page 163 and 164:
collectively refused to supply it w
Page 165 and 166:
Clauses of an agreement that consti
Page 167:
The Competition Authority was a fou
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