Italian: Competition Authority
Italy
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Italian: Competition Authority

Italian: Competition Authority

Italy

From the enforcer: Italy

Address: Piazza Verdi 6/A, Rome 00198, Italy
Tel: +39 06 858211
Fax: +39 06 858212 56
Email: [email protected]
Web: www.agcm.it

Contacts

Roberto Rustichelli
Chairman
Email: [email protected]

Filippo Arena
Secretary General
Email: [email protected]

Andrea Pezzoli
Director General for Competition
Email: [email protected]

Alessandra Tonazzi
Director of European and International Affairs
Email: [email protected]

Antonio Buttà
Chief Economist
Email: [email protected]

Questions and answers

How long is the head of agency’s term of office?

The Competition Act 1990 states that the chairman and commissioners are appointed for a seven-year term.

When is he or she due for reappointment?

Roberto Rustichelli took office on 6 May 2019. He will serve a seven-year mandate expiring in May 2026.

Which posts within the organisation are political appointments?

The chairman and the commissioners are appointed by the speakers of the Chambers of Parliament. The Secretary General is appointed by the Minister of Economic Development, upon recommendation by the chairman of the Italian Competition Authority (AGCM). The Competition Act 1990 states that the chairman must be a person of recognised independence who has already held high office with broad institutional responsibilities. The chairman and the commissioners shall also be independent and are chosen from among judges serving in the courts of highest jurisdiction, university professors of law or economics, and business representatives of highly regarded professional standing.

What is the agency’s annual budget?

The expenditure incurred in 2019 was €58.9 million. Note that this is the overall expenditure covering also other institutional competence carried out by AGCM (for example, consumer protection).

How many staff are employed by the agency?

On 31 December 2019, there were 280 people working at the AGCM (including staff working in competence other than competition).

To whom does the head of the agency report?

The AGCM is an independent administrative body which does not report to any ministry. However, it is required to present an annual report concerning its activities to Parliament. The AGCM issues its decisions without any government interference. The decisions are subject to judicial review.

Do any industry-specific regulators have competition powers?

No, the AGCM has sole power to enforce competition law.

May politicians overrule or disregard authority’s decisions? If they have ever exercised this right, describe the most recent example.

No.

Does the law allow non-competition aims to be considered when taking decisions?

No. The AGCM’s assessment and determinations are exclusively based on competition considerations. However, section 25 of the Competition Law empowers the government to lay down general criteria that the AGCM would be bound to apply to authorise an otherwise prohibited merger when major general interests of the national economy are involved. However, the aforementioned provision has never been applied by the AGCM since such general criteria were not set out.

Section 25 also provides that the Prime Minister may, for reasons of national economic interest and within 30 days of the notification, prohibit mergers involving firms from countries that apply discriminatory provisions or impose clauses having similar effects in relation to acquisitions of foreign firms by Italian undertakings. As with the former, this provision has so far never been used to block proposed acquisitions by foreign undertakings.

In addition, the Bank of Italy may ask the AGCM to authorise for stability reasons a merger that could create or strengthen a dominant position in the banking sector. Moreover, the Bank of Italy may ask the AGCM to authorise, for a limited period of time, agreements prohibited under the Competition Act to ensure the proper functioning of the payments system. However, the Bank of Italy has so far never exercised these powers.

Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this? Has any competition decision by the agency been overturned?

The decisions issued by the AGCM may be appealed before the Administrative Court of First Instance. The court’s judgments may be further reviewed by the Supreme Administrative Court.

Has the authority ever blocked a proposed merger? If yes, please provide the most recent instances.

Yes. The latest prohibition decision was issued in 2013 for Italgas-Aceagas-APS/Isontina Reti Gas (April 2013) in the energy sector.

Has the authority ever imposed conditions on a proposed merger? If yes, please provide the most recent instances.

Yes. There have been five mergers authorised under conditions in 2019: C12207 - SKY Italia/R2; C12245 - F2I S.G.R./Persidera; C12258 - Ascopiave/Rami Di Azienda Di Acegasapsamga; C12231 - BPER Banca/Unipol Banca; C12246 - Fratelli Arena/Rami Di Azienda Di SMA -Distribuzione Cambria-Roberto Abate.

Has the authority conducted a Phase II investigation in any of its merger filings? If yes, please provide the most recent instances.

In 2019, AGCM conducted six Phase II investigations. In addition to the cases mentioned In the previous question, the AGCM reviewed a transaction In the grocery retail sector (C12247-BDC Italia-Conad/Auchan), which was modified by the parties In the course of the proceedings; therefore, the AGCM requested a new notification.

Has the authority ever pursued a company based outside your jurisdiction for a cartel offence? If yes, please provide the most recent instances.

The AGCM can investigate and prosecute all antitrust infringements falling within the scope of the Competition Act, which have been implemented, at least in part, within the territory of Italy, irrespective of where the undertakings concerned are based.

Do you operate an immunity and leniency programme? Whom should potential applicants contact? What discounts are available to companies that cooperate with cartel investigations?

A leniency programme has been in operation since 15 February 2007 and applies to undertakings only. Potential applicants may contact the relevant office within the AGCM, which can also be reached informally on a dedicated landline number, +39 06 858218 72, before the submission of the application, to obtain clarifications and guidance.

Is there a criminal enforcement track? If so, who is responsible for it? Does the authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?

Antitrust infringements under the Competition Act 1990 are civil offences only. A specific discipline for criminal enforcement is provided on bid rigging on public and private contracts.

Are there any plans to reform the competition law?

No.

When did the last review of the law occur?

The annual law on competition (Law No. 124/2017) adopted in August 2017 introduced two changes to the merger notification system in Italy. Namely, it lowered the second threshold (concerning the target’s Italian turnover) to €30 million and clarified that the second threshold applies to the activities of at least two parties to the transaction in the local territory.

Do you have a separate economics team? If so please give details.

In 2008, a committee providing economic counsel to the board was set up. In May 2012, an Economics Unit headed by a chief economist was also established. The Chief Economist Team supports the investigative divisions in economic matters and strengthens the use of economic analysis in more complex cases. The team is currently headed by Dr Antonio Buttà, PhD in economics at London School of Economics and Political Science.

Has the authority conducted a dawn raid?

In 2019, the AGCM conducted national dawn raids in relation to four cases.

Has the authority imposed penalties on officers or directors of companies for offences committed by the company? If yes, please provide the most recent instances.

No. The Competition Law does not provide for penalties to be imposed on officers or directors for violation of the law committed by their companies.

What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?

A concentration will require prior notification when:

  • the aggregate turnover in Italy exceeds €495 million; and
  • the aggregate domestic turnover of each of at least two of the undertakings concerned exceeds €30 million.

Thresholds are adjusted every year to take account of increases in the GDP deflator index, and the resolution is published in the AGCM’s bulletin after the increase in the index has been officially announced. As at March 2020, the updated figures for the two thresholds are €504 million and €31 million.

Are there any restrictions on minority investments that involve less than a majority stake in the business?

Special powers apply to a wide range of transactions relating to assets in specific industries: national defence and security, energy, communications and transportation. These provisions impose mandatory filing obligations on the parties involved in any deal where key strategic assets and undertakings are being transferred and grant the government – not the AGCM – powers to impose vetoes and restrictions on such deals.

Within the remit of the AGCM, the merger control regime may apply to the acquisition of minority shareholdings or stock acquisitions when they confer the possibility of exercising a decisive influence over the activity of the target undertaking (so as to confer joint or sole control over the acquired company).

According to its case law and consistently with the EU Commission practice, the following circumstances may confer (de jure or de facto) sole control over an undertaking even through the acquisition of a minority interest:

  • the subscription of a shareholders’ agreement or other contractual or de facto mechanisms, giving the minority shareholder sufficient powers (for example, veto rights over strategic matters, such as the approval of the budget, the business plan or the appointment of senior management) to influence the undertaking’s strategic commercial decisions; or
  • de facto circumstances, such as the fact that the remaining shareholding is fragmented among a large number of other shareholders, that make it possible for the minority shareholder to exercise a decisive influence on the strategic commercial behaviour of an undertaking.

Finally, there are specific provisions applicable to special sectors: for instance, with regard to the cinema exhibition services, acquisitions leading to the creation of a market share of more than 25 per cent in one of the main Italian cities must be notified to the AGCM.


Italy: from the enforcer's competition economists

Address: Piazza Verdi 6/A, Rome 00198, Italy
Tel: +39 06 858211
Fax: +39 06 858212 56
Email: [email protected]
Web: www.agcm.it

Contacts

Roberto Rustichelli
Chairman
Email: [email protected]

Filippo Arena
Secretary General
Email: [email protected]

Andrea Pezzoli
Director General for Competition
Email: [email protected]

Alessandra Tonazzi
Director of European and International Affairs
Email: [email protected]

Antonio Buttà
Chief Economist
Email: [email protected]

Questions and answers

How many economists do you employ?

The Italian Competition Authority currently employs 43 economists.

Do you have a separate economics unit, or ‘bureau’?

Yes. Since May 2012, an economics unit headed by a chief economist supports the investigative divisions with regard to economic matters and the use of economic analysis in more complex cases. Moreover, a specific committee provides economic counsel to the board.

Do you have a chief economist?

Yes: Antonio Buttà.

To whom does the chief economist report?

The chief economist reports to the secretary general.

Does the chief economist have the power to hire his or her own staff?

No, but he is involved, as part of the senior management, in the decision-making process.

How many of your economists have a PhD in industrial economics?

Fourteen have a PhD in economics.

Does the agency include a specialist economist on every case team? If not, why not?

Except for very specific circumstances, case teams always include an economist.

Is the economics unit a ‘second pair of eyes’ during cases – is it one of the agency’s checks and balances? If not, why not?

The economics unit is one of the checks and balances for the Authority’s investigations, although with no formal veto rights.

How much economics work is outsourced? What type of work is outsourced?

Outsourcing is considered rarely, in specific circumstances.

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