Italian below-thresholds merger review: taking stock of the first transactions “called-in” – it’s getting crowded there

Approximately one year and a half has elapsed since the introduction of the power by the Italian Antitrust Authority (IAA) to “call-in” mergers that fall below the mandatory thresholds set forth in the Italian Competition Law. Since then, the IAA published an initial  guidance on the exercise in practice of this new power (the 2022 Notice), called-in transactions for review in some instances, and has very recently provided further practical clarifications (the 2024 Notice).

The 2022 Notice

The 2022 Notice provided some initial guidance on when a transaction falling below the Italian cumulative revenue thresholds (recently updated to (i) total turnover generated in Italy by all the undertakings concerned exceeding EUR 567 million, and (ii) turnover generated individually in Italy by at least two of the undertakings concerned exceeding EUR 35 million) would be more likely to be called-in for review by the IAA. In particular, the 2022 Notice highlighted that the IAA:

• would take into account a number of criteria, including in relation to the market structure, the nature of the activities involved, and any constraint exerted by other undertakings; 
• it would be “unlikely” to call-in concentrations leading, post-merger, to a combined market share lower than 25% in case of horizontal mergers or lower than 30% in case of vertical mergers in markets which are not highly concentrated;
• the IAA could request a filing ex officio (within 6 months of closing) or the merging parties could voluntarily submit a briefing paper to obtain feedback as to whether the IAA is willing to wield its call-in powers.

The call-in powers in practice

After a soft start, the use of the call-in powers is now in full swing: one of the IAA Board members recently announced that, so far, the IAA required the notification of 8 below-threshold transactions – either as a result of voluntary notifications, or of third-party claims (by competitors of the merging parties or via the whistleblowing tool). Of these, 4 were approved in Phase 1, whereas one Phase 2 investigation was recently launched.

Transactions concluded in Phase 1 concerned the outdoor advertising and the collection and recovery of wood waste sectors. All entailed a horizontal overlap resulting in a combined market share in the relevant market higher than 25%. Nonetheless, the IAA cleared them in Phase 1 in light of market characteristics (including the bargaining power of customers or the existence of numerous alternative operators).

The IAA opened instead an in-depth investigation into a proposed acquisition in the port terminals sector, confirming its willingness to use the new powers across all sectors, including more traditional ones and typically focusing on local geographic markets (even if the main rationale behind the new regime was to tackle “killer acquisitions” chiefly in the digital/media and healthcare/pharma space). This is also the very first case where the newly extended time window of 90-days for a Phase 2 review in Italy applies (it was introduced in early 2024).

What’s new in the 2024 Notice?

The newly adopted 2024 Notice partially addresses the legal uncertainty arising from the 2022 Notice in relation to inter alia some timing aspects having material practical implications (e.g. on closing timing, integration planning). In particular, the 2024 Notice:

• makes it clear that, following a request by the IAA to notify a below-threshold concentration (which as a rule should happen within 30-days from the request by the IAA), it is possible to obtain an extension in order to allow time for a pre-notification phase. Early engagement with the IAA is therefore becoming even more important;
• indicates that – for undertakings willing to voluntarily approach the IAA to verify whether the transaction may be called-in – it will be sufficient to state the reasons why the transaction might “have an effect” on competition. This is a notable change compared to the 2022 Notice which required to indicate why the transaction could raise concrete competition risks (possibly disincentivizing companies from using this “self-reporting” tool to achieve legal certainty);
• seems to encourage companies to voluntarily bring transactions to the attention of the IAA prior to closing and sets a maximum deadline of 2 months after closing for them to do so; and 
• with regard to the 60-days deadline (after a complete voluntary submission concerning a below-threshold concentration) for the IAA to inform the parties of its intention to call-in the transaction, it suggests that, in case of failure to respond, the transaction would not require notification (i.e. the IAA could no longer call it in).

Conclusion

The 2024 Notice is a welcomed effort to further clarify the new regime. At the same time, not all knots have been untied and time and time will tell how the IAA will tackle different scenarios.

For further information about the latest developments in merger enforcement and antitrust globally, please visit our Global antitrust in 2024: 10 key themes report.