Requirements for the Establishment of a Business in Italy

The Italian Antitrust Authority (IAA) is responsible for controlling:

• Concentrations;

• Agreements preventing, restricting or distorting competition; and

• Abuses of dominant position.

The IAA regulates for unfair commercial practices, misleading and comparative advertising and conflicts of interest of Italian governmental officials.

Decisions issued by IAA can be challenged before the Administrative Court of the Lazio Region (TAR Lazio) within 60 days from their notification to the filing parties. The judgments of TAR Lazio can be appealed before the Administrative Supreme Court in Rome.

EU antitrust provisions prevail in Italy and offences against the Competition Act are not criminal offences.

Concentrations

Joint venture arrangements, mergers and acquisitions of control of companies or businesses (by purchase of shares or assets, contracts or other means), may be subject to prior scrutiny of the IAA which may prohibit the implementation of such transactions if they are seen to unlawfully limit competition.

Concentrations in specific economic sectors (i.e. banking and finance, telecommunications and radio/television broadcasting, insurance and energy), may require multiple filings to different authorities, which analyse and assess different aspects of the transaction.

The Italian provisions concerning concentrations are widely modelled on European legislation and practice on mergers. The 'one-stop shop' principle applies.

In the following cases, prior notification to the IAA is required:

(i) The aggregate total turnover in Italy of all the companies involved exceeds €448 million (US$638.4 million); or,

(ii) The domestic turnover of the target company or business to be acquired exceeds €45 million.

Informal guidance may be requested from IAA: the parties may submit written descriptions of the transaction to be discussed with the appropriate authorities.

Upon execution of the merger or purchase agreement, a notification shall be filed immediately to the IAA. A filing fee of 1.2% of the transaction value, with a minimum of €3,000 and a maximum of €60,000, must be paid. Within 30 days from receipt of the form, the IAA can launch an in-depth investigation if it believes that the proposed transaction may create or strengthen a dominant position in the Italian market, and IAA has 45 days upon the opening of the investigation to issue its decision. If the IAA decides that the transaction does not give rise to competition concerns, it must communicate its approval within 30 days from the receipt of the form.

An acquisition or a merger can be implemented in Italy before the decision of the IAA, nevertheless, the IAA may order to temporarily suspend the implementation of the transaction.

The IAA can also clear or prohibit a concentration, or it can approve a concentration subject to structural or behavioural commitments by the parties.

In case of failure to notify, the IAA can fine the party(ies) responsible(s) for the notification up to 1% of its/their annual worldwide turnover. In case of a violation of its orders, the IAA can impose fines ranging from 1% to 10% of the annual worldwide turnover of the business object of the concentration.

Agreements that prevent, restrict or distort competition

The Competition Act, like the EU Treaty, provides that agreements which distort the competition on the national market (i.e. price-fixing or market sharing cartels) are prohibited. The IAA may start an investigation with or without a complaint by an undertaking, a public agency or a private individual.

Companies being investigated may submit commitments within three months of the opening of a proceeding. If the IAA accepts the commitments, they will become compulsory and the proceeding will be closed without reporting an infringement. In case of a failure to comply, the authority may impose a fine of up to 10% of the company's turnover. A company will not receive any fine if it is the first to submit – voluntarily – decisive information or evidence of an infringement, or will receive a reduction up to 50% of the fine if the evidence submitted strengthens the evidences in possession of the IAA.

Abuses of dominant position

The abuse of a dominant position within the domestic market (i.e. unfair purchase or selling prices, limiting or restricting production, markets or investment, technical development or progress) is prohibited. Companies being investigated may submit commitments within three months upon the opening of a related proceeding.

Other matters

Italy has ratified numerous international environmental agreements.

Except for media/telecommunication, production/distribution of energy, or banking and related financial services, no specific governmental approvals are required to operate businesses in Italy.

Licenses and permits may be required for certain specific activities (i.e. production or distribution of food or health care products).

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