The Italian Competition Authority ("the Authority") has recently announced its intention to streamline and simplify the mechanism by which concentrations are to be notified.
The first step in achieving this aim was announced in the Authority's official bulletin No. 12 of 10 April 1995, in which the Authority reported its decision to exclude certain intra-group concentration transactions from the obligation imposed by the Competition Law (Law No. 287 of 10th October 1990) to give advance notification of relevant concentrations. The exemption will apply to both vertical and horizontal intra-group transactions which meet certain requirements. Transactions will therefore be excluded which are:
- between a party and one or more undertakings which it already controls, by virtue of holding, directly or indirectly, either an absolute majority of the corporate capital, or an interest corresponding to an absolute majority of the voting rights exercisable in an ordinary general meeting; or
- between undertakings which are already controlled, directly or indirectly by the same party (i.e. where the party in question holds interests in those undertakings meeting the same criteria as set out above).
Such transactions must still, however, be notified if, notwithstanding the existence of one of the above situations, there is in practice no real "dependency" relationship between the parties. In other words, if "control" cannot actually be exercised by reason of provisions imposed by law or contained in the company's by-laws, as a result of resolutions adopted by the company, or the fact that the interest held is of a purely financial nature, then the notification obligation will still apply.
As it is estimated that inter-group transactions previously made up approximately one third of the total transactions notified to the Authority, there should be a considerable saving in both time and money, which will accordingly be released for the Authority's other areas of responsibility. In the past, in fact, the Authority invariably concluded that such intra-group transactions had no external effect on the market.
In addition to the above exemption the Authority has also approved the draft of a new simplified form to be used for notifying concentration transactions in general. The draft is currently being circulated amongst interested parties (business associations, law firms etc.) for comments. The intention is to finalise the new version for use by the end of the year.
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