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AGCM:The Competition and Market Guarantor Authority is an independent administrative Authority that performs
its activity and makes decisions in full autonomy with respect to the executive power. It was established by law
no. 287 of 10 October 1990, containing "Regulations for the protection of competition and the market".

ATI:Temporary Association of Companies, or Temporary Grouping of Companies, often indicated with the
acronyms ATI or RTI, in Italian corporate law, means a legal form in which several companies are
come together to participate together in the realization of a specific project. The specific purpose can be the
participation in tenders for which individual companies do not own all of them individually
the operational skills, characteristics, categories or classifications required in the tender.

LDCO:Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to
horizontal cooperation agreements, outline the principles to be applied for the evaluation under the article
101 of the TUFE to business agreements, decisions of business associations and concerted practices
(collectively referred to as "agreements") regarding horizontal cooperation.

TFEU:The Treaty on the Functioning of the European Union (abbreviation TFEU), as last amended by Article 2
of the Treaty of Lisbon of 13 December 2007 and ratified by Italy with law 2 August 2008, n. 130, on GU n.
185 of 08/08/2008 - Suppl. ordinary n. 188, is, alongside the Treaty on European Union (TEU), one of the treaties
fundamentals of the European Union (EU). Together they form the fundamental foundations of primary law
in the EU political system; according to Article 1 of the TFEU, the two treaties have equal legal value e
collectively referred to as "the Treaties".


Antitrust:rule, provision (or even institution) aimed at protecting free competition and preventing practices

Compliance:The English expression to comply with means "to comply with certain well-defined rules, adhere to certain
principles". The noun compliance simply means "conformity".

Directive:Regulatory act of the European Community which binds the member states only as to the result from
reach, leaving them free on the means.

Guidelines:A guideline is a set of information developed systematically, based on
of continuously updated and valid knowledge, drawn up for the purpose of making appropriate, and with a
high standard of quality, a desired behavior. Mostly these are not mandatory procedures
(in this case we speak of protocol, code or procedure). These standards are contained in documents brought to
knowledge of an audience of interested parties (for example with a circular) and constitute a starting point for
the setting of shared behaviors and modus operandi in organizations of all kinds (both private and
public) in the social, political, economic, business, medical fields and so on.

Mock-cases:hypothetical trial case.

Policy:with policy we indicate a set of actions (but also of non-actions) carried out by subjects of character
public and private, somehow related to a collective problem. Specifically, the term comes in
reference to Company Policy (which constitute the so-called "Company Regulation").

Regulation:it is an act of European Union law of general application. It is mandatory in all its elements
and directly applicable in each of the Member States.

Risk mitigation:Risk mitigation.

Whistleblowing:Whistleblower in English means "whistle blower": the term is a metaphor for the role of
arbitrator or policeman hired by anyone who calls and requests attention on activities that are not permitted, or illegal,
for them to be stopped.


INTRODUCTION ................................................. .................................................... .................................... 6

CHAPTER 1.1 - THE CONTENT OF THE ANTITRUST COMPLIANCE PROGRAM ....................................... .. 11
CULTURE AND CORPORATE POLICY. .................................................... .............................................. 12
CHAPTER 1.3 - TRAINING ACTIVITIES ........................................ .................................................... .. 13
CHAPTER 1.4 - MONITORING AND CONTINUOUS IMPROVEMENT ................................................ ................. 14
CHAPTER 1.5 - COMPLIANCE COMMITMENT BY TOP MANAGEMENT ............................... 15
CHAPTER 1.6 - WHISTLEBLOWING MECHANISMS ........................................... .................................... 16
OF THE COMPANY ............................................. .................................................... ....................................... 17
CHAPTER 1.8 - DISCIPLINARY SANCTIONS .............................................. .................................................... .... 19


CHAPTER 2.1 - EUROPEAN COMPETITION LAW .............................................. ......................... 23
CHAPTER 2.2 - THE ITALIAN REGULATION ............................................ .................................................... ... 26
CHAPTER 2.3 - THE ADDRESSEES OF THE ANTITRUST LEGISLATION .............................................. ....................... 27
CHAPTER 2.4 - THE TYPICAL CASES ........................................ ................................................. 30
CHAPTER 2.5 - FURTHER CASES .................................... .................................................... ... 31
CHAPTER 2.6 - THE EXEMPTION REGIME OF AGREEMENTS ................................................ ............................... 34
GENERAL OR OPERATING UNDER A MONOPOLY REGIME ................................... ................................ 43
CHAPTER 2.9 - MERGER OPERATIONS BETWEEN COMPANIES .............................................. .............. 44
OF THE EUROPEAN COMMISSION ............................................. .................................................... ............ 48
CHAPTER 2.11 - GUIDELINES ON ANTITRUST COMPLIANCE .............................................. ..................... 54


Premise ................................................. .................................................... .............................................. 58
CHAPTER 3.1 - AGREEMENTS RESTRICTING COMPETITION .............................................. ................... 58
CHAPTER 3.3 - CONCENTRATION OPERATIONS BETWEEN FIRMS .............................................. .............. 70
CHAPTER 3.4 - THE DECISION-MAKING POWERS OF THE AGCM ....................................... ................................................ 72


This document was approved by the Board of Directors on 31 March 2022 and constitutes the Antitrust Compliance Program (hereinafter the "Program") of Air Corporate SRL unipersonale

(hereinafter "AC" or the "Company").

AC's core business is continuous and spot-type passenger air services for typical private customers
corporate in observance of the provisions of the Navigation Code (articles 776 and 789), of the related
implementation of Chapter II (Ministerial Decree of 18 June 1981, articles 2 and 3) and of its licenses including those of aircraft operator.
The Program was drawn up on the basis of the indications contained in the Antitrust Compliance Guidelines
adopted with Provision no. 27356 on 25 September 2018 by the Competition and Market Guarantor Authority
(hereinafter "AGCM" or "Authority").

The Guidelines outline the procedures / activities to guide companies in the concrete implementation of the
Program by defining its content.
The Guidelines give priority to the pursuit of the following:


The promotion of a culture of competition that is widespread in the entrepreneurial fabric;
Preventing antitrust wrongdoing through the timely adoption of antitrust programs
effective compliance;
Legal certainty regarding the evaluation criteria of compliance programs for the purposes of
recognition of the extenuating factor;

The Program represents the clear expression of CA to promote and implement at every level of its structure
company to prevent antitrust violations.
Indeed, the principles of the free market and competition are fully among the fundamental values of AC,
the observance of which constitutes a basic element of the mission of AC. With the adoption of the AC program renews
its commitment to full compliance with antitrust rules, promoting compliance by each
employee and of each business process of a commercial nature. As better specified below
document, the Program allows AC to benefit from a series of advantages, in particular in terms of
mitigation of any fines applied by the AGCM, as required by the indications
contained in the Guidelines on the methods of applying the criteria for quantifying the sanctions
administrative fines imposed by the Authority.



          _cc781905-5cde-3194 -bb3b-136bad5cf58d_           _cc781905 -5cde-3194-bb3b-136bad5cf58d_         _cc781905-5cde-3194- bb3b-136bad5cf58d_E OF COMPANY POLICY


The term "antitrust" means the set of rules that make up competition law and guarantee
a market in which competition between companies is dynamic and effective. These rules, in fact, have the primary purpose
to ensure the correct functioning of competitive dynamics, in order to prevent competition between companies from being reduced or distorted, thus preventing the improvement of the quality of products and services as well as altering the formation of prices, to the detriment of consumers.

The substantial suitability of the Program to perform a preventive function of antitrust offenses constitutes the parameter
of fundamental reference in the evaluation of the same for the purpose of recognizing the extenuating factor. The program
is designed and implemented in line with the characteristics of AC and the context of the market in which it operates and reflect the
nature, the degree of antitrust risk to which it is exposed and can, therefore, be considered adequate

and potentially effective.

The Program, therefore, is appropriate to the nature, size and market position of AC. Indeed, in general,
the type of activity that the company carries out determines the antitrust risks to which it is exposed. Process design e
procedures necessary for effective prevention of antitrust wrongdoing, and must be proportionate to
complexity of corporate organization and the articulation of management levels. Exposure too
of the firm in the market constitutes a relevant element: this is evident in the case in which the market power
of the company is such as to require the management of the antitrust risk deriving from possible abusive conduct.
The compliance program must be adapted to the market environment. For example, collusive risks can
to depend:

  • by the number of active enterprises

  • by size

  • of the same

  • by the degree of transparency

  • of the commercial conditions

  • the frequency of contacts between companies

Similarly, for a dominant firm, antitrust risks may depend on the organization of the company
production chain, i.e. from the relationships that the company maintains with customers and suppliers, also the dynamism of the context
competition can take on importance, as it affects the antitrust risk faced by the company and consequently
on the need for continuous monitoring of the adequacy of the compliance programme.


In order to ensure effective compliance with antitrust rules, AC ensures that the entire company organization
know and understand these rules.
An effective compliance program requires a clear recognition of the value of the competition as a party
an integral part of the corporate culture and policy and the continuous and long-lasting commitment to comply with it. To this end AC
allocates sufficient resources to implement the Program so that the principles of autonomy and independence are respected
of the Manager and that adequate systems are in place.
The effective commitment of AC to prevent antitrust offenses is ensured because:

  • Competition is actually recognized, in the Code of Ethics of corporate conduct, as a value

foundation of the business activity;

  • A compliance program specifically aimed at preventing antitrust risk is developed.

The antitrust compliance program is part of the control and management systems of other and different risks
to which AC is equally exposed; the compliance program is supported by top management, including through
their concrete involvement in the implementation and monitoring of the Programme;

  • Sufficient corporate resources are allocated to program design, implementation and monitoring;

  • A Program Manager has been identified who is recognized as having autonomy, independence,

adequate resources and tools. The Manager reports directly to the top management of the company.
For the purpose of implementing the Program Ac appoints Lawyer Rocca Maria as Program Manager.


The Program provides training and education activities for personnel, aimed at strengthening knowledge and
understanding of antitrust law.
In particular, training and refresher courses are set up, on an ongoing basis, scheduled at regular intervals
regular times and with possible extraordinary interventions, divided not only by level, but also by business areas and
focused on the specific risks that each area is faced with in its business.
The main purpose, in fact, is to provide each business area with the guidelines that they can be
usefully followed in the context of the various initiatives carried out, already before and independently of the involvement
of the corporate antitrust function.
An approach focused on practical cases (eg with the reproduction of mock cases) is preferred, to capture interest
of the audience and ensure that the individual participant does not receive purely theoretical notions but also, and above all,
concrete tools that can be used in one's daily activity.
The moment of training and deepening of competition law is essential in order to allow
that behaviors compliant with antitrust discipline become an intrinsic part of the culture


Antitrust compliance is not a simple end-to-end process but rather a circular process that needs to be done
of continuous revision and refinement, having to respond to external solicitations that evolve and modify in the
course of time.
The last phase of this circular process is that of monitoring, which has a dual purpose:

  • verify the effectiveness and level of concrete implementation of the program adopted

  • allow for a review of the same

  • monitoring

Allow for a review of the same, where the identified risks and their assessment undergo changes -
inevitable consequence of a dynamic context such as the market - and the measures in place are no longer


Compliance with competition law is a fundamental aspect of the governance of each company.
Hence the commitment (so-called commitment) on the part of the top management (so-called senior management) of AC Volto
the identification of risk areas and the prevention of possible violations.
AC believes, in fact, that only the conviction and constant, continuous and manifest commitment of senior management
can ensure that each employee considers the goal of antitrust compliance as their own goal, as if it were a real mental attitude of each one (so-called mindset), and works to achieve it.

The European Commission itself has stated on several occasions that the support of top management is essential for
being able to create a culture of compliance with the law in the corporate structure.
That said,the need for cooperation from all levels of the company is obvious: every employee will have to
comply with antitrust regulations and comply with the provisions of the internal strategy, given that the conduct of the
individual are suitable to lead to the responsibility and liability of the company as a whole.


Another important risk mitigation tool is the adoption of internal reporting systems
violations, through which each employee of the company can report, in a confidential and anonymous manner, conduct suspected of infringing the antitrust regulations of which he has become aware in the context of his activity.
There are many channels through which reports can be made (e.g. web platforms, so-called whistleblowing telephone lines or helplines or hotlines).

The company can collect reports in-house, entrusting this task to an adequate number of resources to provide
timely and appropriate responses to the remarks made, or, where financial resources permit, in
outsourcing, making use of third-party companies specialized in providing the reporting collection service.
The channel that offers the greatest guarantees in terms of security and quality of the information transmitted is the platform
web, especially if managed by an external company specialized in providing services of this type. By the
platform, the complainant fills in a special form whose structure and content have been
previously agreed with the applicant company.

The in-house solution, on the other hand, certainly has the advantage of being cheaper and offering greater certainty about the
fact that the system is effectively tailored to the specific needs of the company organization.
In order to encourage the reporting activity, the system should in any case provide for adequate safeguards
of the reporting entity. In fact, we must try to guarantee the confidentiality of the data as far as possible
information collected and the anonymity of the whistleblower. The aim is to prevent the latter from giving up possible reports


An effective compliance program must be devised based on a careful analysis of the risk posed
be anti-competitive conduct that the company is faced with (so-called "antitrust risk").
An in-depth risk analysis allows the correct identification of intervention priorities through
the identification of the most problematic areas and the appropriate prevention and/or management activities and the consequent
maximizing the effectiveness of the resources used for its implementation. From a risk management perspective,
in fact, it is desirable that the single company allocates resources as a priority to the activities and management areas
most exposed to the risk of violation of the rules for the protection of competition.

For this reason, the correspondence of the Program to the specific antitrust risk of the company is an element
bearer of the assessment regarding its adequacy for the purpose of recognizing the extenuating factor. Ultimately,
in fact, the program's effectiveness depends on its ability to prevent or manage antitrust risks in the business
company in order to minimize or eliminate them altogether.

Once identified, antitrust risks need to be assessed, both to determine the likelihood and each of them
materialize and to estimate their potential impact.
In the risk assessment phase, it is advisable to define the level of severity and classify it as high, medium
it's short.


depending on the size and characteristics of the company and, therefore, on the probability that, having regard to these
features, it will materialize. Regardless of the dimensional aspect, another variable capable of affecting the
risk profile concerns the ability of a given company area to come into contact with the outside world (customers,
suppliers, competitors).
Generally and abstractly,areas can be considered as exposed to high antitrust risk:

1 - responsible for strategic decisions for the company;

2 - business, in particular the commercial divisions that deal with sales/purchases, marketing, pricing, etc.;

3 - in charge of representing the company in the sector associations or those they can more easily set up

      relations with competitors.

Conversely, the following areas are generally less exposed to antitrust risk:

1 - who perform strictly operational and staff functions;

2 - administrative;

3 - back office.

The Program has the following objectives:


  • Develop innovative and pro-competitive behaviors aimed at strengthening the antitrust culture internally


  • Raise awareness of senior management, managers and all employees about the

      _cc781905-5cde-3194-bb3b-136bad5cf58d each

  • Provide practical guidance to ensure that everyone understands the key principles of the legislation

      _cc781905-5cde-3194-bb3b-136bad5cf58d in full compliance with antitrust and antitrust law_

  • Establish standards of behavior for all personnel in the conduct of business and

      _cc781905-5cde-3194-bb3b-136bad5cf58d business relationships with third parties_

  • Identify risk areas and consequently adopt preventive and/or corrective measures, also at

      _cc781905-5cde-3194-bb3b-136bad5cf58d in order to gain a competitive advantage_

The Program applies to competitor, customer, supplier, contractor, and other relationships
third party with whom AC has commercial relations. All employees are required to
operate, in the performance of its duties and in relations with other economic operators, in accordance with and in
compliance with antitrust law.
It is everyone's individual responsibility to act according to these rules and not to implement behaviors that
may, in any way, even potentially, have the object or effect of distorting or restricting the
competition within the market in which AC operates, exercising its business activity.


The success and effectiveness of an antitrust compliance strategy also depends on the provision of specific disciplinary sanctions, as a consequence of the violations of the antitrust legislation and of the program specifically adopted to avoid them; sanctions that can concern anyone, including the top management of the company.

These sanctions, to be foreseen in the compliance programme, can be of different types

it can be a mere reminder (informal oral or
written form) or a fine, if applicable
accompanied by the obligation to participate in courses
training and updating on legislation


but also of penalties more serious career accidents
of the offender, such as suspension,
demotion, retreat
in the classification or lack of promotion until
dismissal or legal action.

The type of sanction applied may vary according to the seriousness of the infringement as well as the subjective element
of the natural person or persons materially responsible for the infringement in question. In fact, a distinction should be made, in order to graduate the sanction possibly imposed, according to whether the violation was committed intentionally or negligently.


In any case, the sanctioning policy adopted must be applied consistently to the entire corporate structure:
that is, it must be clear that anyone who engages in conduct contrary to antitrust law and the policies of
internal compliance is subject to disciplinary action, regardless of the role held in the company.


This aspect is of particular relevance, not only for dissuasive purposes, but also to be able to demonstrate serious commitment
of the enterprise to compliance despite the infringement. In this regard, it is important to consider, as anticipated, that the
AGCM guidelines include compliance programs among extenuating circumstances, with a caveat
that their mere existence does not affect the assessment of the seriousness of the infringement as the
demonstration of an effective and concrete commitment to comply with them.

In conclusion, a credible compliance program cannot ignore the definition of adequate measures
disciplinary measures, suitable for spreading the message of "zero tolerance" among employees and company partners
against antitrust violations.





The main European competition rules aimed at businesses are the prohibitions on restrictive agreements and abuse of
dominant position and the preventive merger control system. These standards concern, within certain
limits, also companies that manage services of general economic interest or enjoy special or exclusive rights*.


Article 101 of the TFEU prohibits restrictive anti-competitive practices which affect trade between Member States.
The broad scope of the ban covers:

  1. if the object of the agreement is anti-competitive, there is no need also prove its anti-competitive effects; 

  2. any restriction of competition is prohibited, whether the game of competition is prevented or eliminated whether it results simply narrowed down or distorted;

  3. not only the "agreements" between companies and the "decisions" of associations enterprises, but also concerted practices by enterprises without a real deal;

  4. agreements which have as their object the restriction of competition, but even those that only produce such an effect;

*A fourth area of intervention of European competition law is the rules on state aid (Articles 107-109 TFEU).

To protect competition, state aid rules limit the benefits that a Member State can grant (under various capacities and in different ways)

to national companies.

Despite the peremptory indication of the first paragraph that the restrictive agreements are “incompatible with the market
common”, Article 101(3) TFEU allows for derogations if the overall benefits of the cartel outweigh the negative effects
for the competition. This happens when some cumulative conditions are met: benefits for production,
distribution or innovation reserved in fairness to customers; unjustified restrictions of competition o

*In essence, Article 101 (3) TFEU confers considerable discretion, without specifying that he must have it.
In 1962, the Council filled this regulatory vacuum by giving the Commission a monopoly on the power of exemption and by setting up a centralized notification regime, under which all potentially restrictive agreements had to be notified in advance to be eligible for an exemption. This system ended on 1 May 2004 with the entry into force of Regulation (EC) no. 1/03, which gives national competition judges and authorities, who previously could only prohibit restrictive agreements in application of EU law, also that of exempting them.

However, the Commission still retains the exclusive power to exempt other categories of agreements through Regulations.


Article 102 of the TFEU prohibits the abuse of a dominant position.
This prohibition presupposes that the dominant company, not being subject to effective competitive pressure,
tends to operate in an inefficient manner by debasing the quality of the products or services offered on the market and generally acting to the detriment of suppliers and end customers.

Holding a dominant position or acquiring it through internal growth is not in itself illegal. Efficient businesses
they are managed precisely with the aim of conquering the markets and reaching significant positions when they can
market. Article 102 TFEU affects only the behavior of an undertaking which misuses its own
dominance to hinder competition or to unduly exploit contractual counterparties.


The creation of the common market had among the objectives of stimulating the growth of European companies, so that they achieve economies of scale and scope. The ensuing wave of mergers was welcomed, insofar as it allowed for dynamic competition between firms and increased the competitiveness of European industry.

However, it was soon clear to the European institutions that the bans on anti-competitive offenses were not enough to prevent them
that this massive process of corporate reorganization would permanently damage the structure
competitive markets, for example by creating economic entities with too much market power, able to prevent
effective competition.

At the end of 1989. The EU legislator therefore introduced a system of prior assessment of mergers,
which obliges companies to notify the Commission of all concentrations with a European dimension, i.e. between companies with turnover above certain thresholds. This system was modified at the beginning of 2004 with Regulation 139/04, now in force*.

The purpose of merger control is to be able to prohibit structural operations (in the form of
mergers, acquisitions or the creation of independent joint ventures with respect to the parent companies) that hinder competition
effective in the common market or in a substantial part thereof, in particular, but not limited to, by creating or
strengthening of a dominant position.

The notification obligation depends on a mathematical calculation of the turnovers of the companies concerned which is independent
entirely on the merits of the operation. Therefore, the buyer must notify even if the draft
concentration is completely harmless to competition, for example because the companies concerned do not operate in the
same markets or in contiguous or related markets.


*Cf. Regulation (EC) n.139/04 of the Council of 21 January 2004, concerning the control of concentrations between companies, in GUCE [2004] L242, p. 1.


National competition rules transpose EU law to a large extent. In accordance with article 1 (4) of Law no.
287/90, the interpretation of the main substantive rules contained therein must be "carried out on the basis of the principles
of the European Community legislation on competition law". Therefore even when it applies
these rules the Authority constantly refers to EU legislation, jurisprudence and decision-making practice,
tending to conform their decisions to them.

The prohibition of restrictive agreements under national law is practically identical to the European one. Article 2 of the Law
287/90 prohibits similar agreements, sanctioning their nullity, in terms analogous to Article 101 (1) and (2) TFEU. The next one
Article 4 of the National Law allows for exceptions to the ban, subject to four cumulative conditions similar to
those of Article 101 (3) TFEU. However, there is a further one: the “need to ensure that businesses have the necessary
international competitiveness".

Also for the abuse of a dominant position and the control of concentrations, the national provisions correspond
largely to those of the EU.

Article 3 of Law 287/90, like article 102 TFEU, prohibits any abusive exploitation of dominated positions.
The national regulations on concentrations (articles 5, 6 and 16 of Law 287/90) replicate, with few differences, the system
of European merger control, providing for an obligation of prior notification to the exceeding of certain
turnover thresholds, a definition of concentration phenomena inspired by the EU and a substantial evaluation test still similar to that of the old Community regulation in force until 2004 (Italy has in fact failed to align itself with the changes to the European system).


By enterprise we mean any subject, of a public or private nature, to which an economic activity can be ascribed
production or exchange of goods or services on a given market, even if not for profit, in a lasting and independent way, regardless of its legal status and its mode of operation. The notion of enterprise, therefore, is functional, in the sense that it refers to the type of activity carried out rather than to the characteristics of the operator who exercises it (*4).

Furthermore, in terms of size, the concept of enterprise transcends the single economic entity: more subjects, even
if legally separate, they are considered a single enterprise if they operate as a single economic unit, with the
same commercial purpose and under a single direction.

Like the notion of enterprise, also that of cartel, always developed by the Community jurisprudence and accepted
by the Competition and Market Authority (hereinafter "AGCM" or "Authority"), is far-reaching. The
reference standards prohibit three forms of agreement: agreements, decisions of business associations and practices
agree. The common element is constituted by the collaboration between companies which gives rise to even potentially different behaviors from those which would be dictated by the market structure and context. The plurality of the parties and the cooperation of wills, even tacit, among the companies that decide to agree on their respective commercial conduct are also essential.

The notion of agreement (*5) includes every manifestation of the meeting between the wishes of several companies, a
regardless of the form used and the binding nature of this manifestation. In the light of the Community precedents e
in fact, a simple manifestation of a common will reached in the context of meetings between
representatives of the companies, even in the absence of minutes and reports of the meetings themselves, as well as specific ones
agreement execution mechanisms.

The decisions of associations (*6) of companies are the resolutions adopted by representative bodies of a category of companies aimed at influencing the commercial conduct of their members, producing anti-competitive effects.

By business association we mean any structure having a corporate nature (with or without a personality
legal) which, regardless of the pursuit of a profit, performs the function of expressing the collective will of the participating companies, influencing their individual conduct. Any form of resolution, including non-binding ones, such as resolutions, regulations,

*4 The notion of company in competition law is much broader than that found in other branches of law.

Also in compliance with the European law principle of useful effect, for the purpose of protecting competition, the notion of company includes "any activity of an economic nature such as to be able to reduce, even only potentially, competition on the market" and "they can be considered companies all subjects, however structured and organised, who carry out deeds with an economic content suitable for restricting competition”

(Cf. Cons. State ruling June 27, 2005, n. 3408).

*5 In competition law, the notion of agreement is also broader than the civil contractual one.

It includes any form of conscious adherence by the parties to a common plan of action. To integrate an agreement it is enough that at least two companies

"have expressed their common will to behave on the market in a certain way" with the aim of reducing uncertainty about their respective future conduct (cf. EU Court judgment 9 July 2009, T-405/05) Peugeot §168) .

*6 Even if formally they are unilateral acts, the decisions of associations are considered intended because they come from subjects formed by a group of companies. Article 2 of Law 287/90 uses the term deliberation instead of that (decisions) found in article 101 TFEU.

self-regulatory codes, press releases, recommendations, circulars, professional tariffs and codes of
conduct, to the extent that such acts are suitable for coordinating the commercial conduct of the recipient companies (*7).
The notion of concerted practice8 refers to any form of coordination with which companies, even without
come to a real agreement, consciously substitute mutual cooperation for the risks of
competition. In particular, it aims to subject all those cases to the prohibition of anti-competitive agreements
collusive, which do not fall into the first two categories and, therefore, do not constitute either an agreement or a decision
of business association.

In order to identify the concerted practice (*8), the European jurisprudence, with which the national one has aligned, has some
progressively identified three constituent elements:


  1. the existence of a contact between the enterprises;

  2. the subsequent conduct of firms on the market participants in the concertation;

  3. a causal link between contacts between competitors and their subsequent market conduct (*9).


Even behavior that is simply parallel, therefore, can be qualified as a concerted practice if

concertation is the only possible explanation for the behavior itself. However, the existence of one is necessary
some form of contact between companies, which allows them to get to know each other's commercial strategies.


On closer inspection, therefore, the parallelism of behaviors does not by itself prove the existence of the concerted practice but it can
provide clues in this sense if, taking into account the nature of the products, the structure and characteristics of the
market, it is not possible to find an alternative explanation capable of reasonably excluding concertation.


*7 The broad concept embraces any act suitable for coordinating the action of members on the market, even if informal, non-binding or not disclosed to all members, or still adopted by non-competent association bodies (see AGCM, provision of 25 February 2009 , No. 19562, I694, Price list of pasta §§ 164,302).

*8 See ex multis, Cons. state, sent. 23 September 2019 no. 6314, Friuli Venezia Giulia Concrete Market, § 2.1 according to consolidated Euro unitary and national guidelines, in the "concerted practice there is no express agreement, but there is a form of coordination between companies which without being pushed to the point of implementing a real agreement knowingly replaces an express collaboration between them to avoid the risks of competition”.

*9 European and national courts have identified three typical elements of concerted practice.

The First element is a direct or indirect contact, capable of influencing the market conduct of a current or potential competitor (EU Court sentence 12 December 2007, joined cases T-101 and 111/05, Basf AG and UCB §§ 160 -161); the second element is the conduct on the market of the participants which is suitable for preventing, restricting or distorting competition, taking into account the legal and economic context in which it takes place (See EU Court ruling June 4, 2009, C-8/08, T- Mobile Netherlands, §§ 32-33); the third element is the causal link between the contacts between competitors and the subsequent conduct on the market

(See EU Court sentence July 8, 1999, C-49/92, Anic Partecipazioni § 116-118).

For example, a system of periodic meetings between the parties, in which companies exchange
sensitive information relating to its activities, is a useful element to demonstrate that the uniformity of the policies
trade is the result of conscious coordination. Concertation, in fact, which does not presuppose
Necessarily, since an agreement can derive from simple recommendations, suggestions or communications of one's prices or other conditions of sale, it must also have a concrete and direct impact on the conduct of companies.

Agreements can be divided into horizontal (*10) and vertical (*11); distinction that cannot be found in the TFEU, much less
in the law n. 287/90, but which is widespread in the practice of business and has been implemented in the acts of the Commission and

For horizontal agreements means agreements or concerted practices entered into between two or more undertakings
operating at the same stage of the production or distribution chain or competing companies active in the same product and geographical area. The most common and most harmful forms of
competition of horizontal agreements are those listed in Article 101 of the TFEU,

as per article 2 of law n. 287/90.

For vertical arrangementsmeans agreements or concerted practices concluded between two or more companies operating at a different level of the production or distribution chain and relating to the conditions under which the parties can buy, sell or resell certain goods or services. Typical examples are distribution agreements between manufacturers and wholesalers or retailers or agreements between a distributor and a retailer or between a raw material supplier and a product manufacturer
finished. Even vertical agreements, like horizontal ones, are capable of distorting the game of free competition; however, they generally enjoy more favorable treatment because they do not involve direct companies
competition between them and, by virtue of the complementarity of the latter, can generate efficiency gains.

*10 Horizontal cooperation is the subject of a communication adopted by the Commission in 2011 (the Guidelines
guidelines on horizontal cooperation) LDCO; and two block exemption regulations concerning
research and development (so-called R&D) and specialization agreements, respectively.

*11 On vertical restraints in competition law, see D. Bailey-LE John Bellamy & Child: European
Union Law of Competition, 2018, chap.7; V. Auricchio- M. Padellaro- - P. Tommasi, The distribution agreements
commercial in competition law, 2013.



Both Community legislation (Article 101, paragraph 1, letter a) - e), TFEU) and national legislation (Article 2, paragraph 2, letter a) - e), Law no.
287/90) are concerned with typifying certain behaviors which, when carried out, undoubtedly integrate a case of
understood. In particular, they consist in:

a) fix the purchase or sale prices or jointly determine other contractual conditions;
b) restrict supply by preventing or limiting production, market access, investment,
technical development or technological progress;
c) compartmentalize the markets;
d) adopting differentiated treatments towards the contracting parties for equivalent services in the absence of
objective justifications;
e) subordinate the conclusion of contracts to the acceptance by the other contracting parties of services
additional extraneous to the object of the contracts themselves.

to) Price fixingconstitutes the most sanctioned form of agreement.

It is considered anti-competitive even if the price indications are non-binding or, instead of fixing a specific price, they prescribe compliance with both maximum and minimum price levels.
The prohibition also affects practices which take the form of setting contractual conditions other than the
price (guarantee, payment methods, additional services offered to customers, etc.), but which equally tend to
standardize the offer on the market.

b)The limitation of productionis aimed at raising prices to above-competitive levels, through a
reduction of the quantities produced by the companies participating in the agreement and consequent restriction of supply.
The forms in which this practice can be expressed are various: for example, through the determination of quantities
that each company member of the cartel can produce or sell, leaving the market to establish the price;
or through the determination of a ceiling on production which is divided by quotas (in this case, each member of the agreement undertakes to reduce its offer by a certain quantity or percentage, with the consequence that, despite the market quotas remaining constant , the quantity of the good on the market decreases and prices increase).

c) Market compartmentalizationit is aimed at circumscribing the area of action of each competitor and can be achieved through an agreement that determines the allocation of customers or of the geographical areas in which each company can operate.
In the presence of forms of cooperation which have as their objective the fixing of prices, the limitation of
production or the partitioning of markets are usually referred to as cartels. The signs, which are characterized by their
secrecy, severely restrict competition and harm consumers. Precisely for this, their discovery
represents one of the fundamental objectives of the action of the competition authorities.


Alongside the cases typified by the regulations, the practice of the Commission and the AGCM has revealed further cases
collusive, of which the most significant examples are the exchange of information and coordination in the
participation in public tenders.


The exchange of information (*12) can either be relevant as part of a horizontal agreement, in the sense that the exchange is an element of support or implementation of the agreement (and in this case, it must be assessed in the context of the agreement in which
inserts itself), or itself integrate an autonomous case of cartel within the meaning of Article 101 of the TFEU or
of article 2 of the law n. 287/90.

For the exchange of information to be relevant from an antitrust perspective, the following elements need to be examined:


  • the degree of sensitivity of the information exchanged: for the ban to work, the data exchanged must

be sensitive, i.e. strategic (prices, customer lists, production costs, quantities, turnover,
sales, capabilities, quality, marketing projects, risks, investments, technologies, programs and results
research and development) and non-public (not easily accessible, in view of the access costs,
for all competitors and consumers);

  • the level of aggregation of the data exchanged: in general, it is legitimate to disseminate market data

effectively aggregated - i.e. data through which individual companies cannot be traced - below
form of statistics. On closer inspection, however, even the dissemination of such data could be revealing of
a collusive intent if the reference market is rigidly oligopolistic: the more it is
rigid and restricted the oligopoly, in fact, the easier it is to disaggregate the data and favor a balance


  • the topicality of the data being shared: the exchange of historical data can be said to be irrelevant, since it is

data hardly indicative of the future behavior of competitors. That said, however, it doesn't exist
a predetermined threshold beyond which the data become historical and, therefore, it is necessary to look at the
market characteristics. For example, if the market is characterized by frequent moments of
bargaining, a datum more than a year old can be considered historical; otherwise, if yes
contracted once a year, a figure dating back to the previous year is certainly relevant and current;


  • the frequency of information exchanges: it is clear that a greater frequency in the exchange allows for both

a better understanding of the market than a greater control of the same, with the increase of
risk of a collusive hypothesis. However, it should be noted that even a less frequent exchange could
be sufficient to bring about a collusive outcome in markets with long-term contracts, in which
the frequency of price renegotiations is low. Otherwise, such an exchange would not be needed
for collusive purposes in markets with short-term contracts and frequent price renegotiations.

*12 The introduction of a section dedicated to information exchange was an important innovation of the LDCO.
The general criteria set out therein concern not only agreements whose main object is the exchange of data but, more generally, all information exchanges conducted in the context of other forms of horizontal cooperation as well.


Particular attention should be paid to meetings and encounters within the trade associations, as, in different
occasions, the Authority considered that this was the privileged forum for the exchange of information13. For
to avoid these potential anti-competitive drifts, it is good practice that the company intending to participate in the meetings
associations adopt a series of practical precautions, including:

  • verify the legitimacy of the statutory purposes of the association;

  • obtain and check the agenda for each meeting beforehand, as well as make sure that

minutes are kept of the issues actually discussed;

  • designate, in their representation, preferably executives or employees with positions or duties of a nature

technical and non-commercial;

  • possibly provide for the attendance at meetings of the legal adviser, manager or employee with adequate

knowledge of competition law, able to monitor the progress of discussions; And

  • instruct its representatives to refrain from organizing (or otherwise taking part in) informal meetings

upstream or downstream of the official meetings.


Anti-competitive agreements concerning tenders for the award of public contracts (so-called bid rigging)
constitute particularly offensive forms of infringement of the competition rules and qualify as
hardcore restrictions by both national and community jurisprudence.

As regards the problem of setting up Temporary Associations of Companies (ATI), Groupings
temporary companies (RTI) and consortia for participation in tenders, the Authority considered that these forms of
cooperation between companies14 are undoubtedly compatible with antitrust legislation to the extent that they allow a
companies active in different stages of the same supply chain to be able to submit their offer to tenders to which
individually they could not participate.

With regard, however, to groupings made between companies that produce the same good or service e
each independently have the financial and technical requirements for participation in the tender (so-called ATI
"surplus" or "unnecessary"), the Authority has recently clarified that the exclusion of such groupings from the
tender is legitimate where the relative clause of the tender:

1- explain the reasons for the possible exclusion in relation to the needs of the specific case, such as the nature of the service and/or the structure of the reference market;

2- provides that the exclusion of the RTI cannot be automatic, since the contracting station is required to demonstrate the existence of concrete and current risks of collusion of the companies participating in the tender in grouping;

3- establishes that the assessment of the contracting authority, relating to the existence of possible anti-competitive profiles in the formation of the grouping, takes into account the justifications - in terms of management and industrial efficiency, in the light of the value, size or type of service requested - that the
firms participating in the RTI provide at the time of submitting the application or at the station's request


*13 See, for example, AGCM provision 20 December 2018 no. 27497, I811, Auto loans in which the Authority contested
the existence of a secret horizontal understanding, based among other things on an intense exchange, bilateral and multilateral and also
in the association, of sensitive information from an antitrust point of view that would have allowed the parties to eliminate
the uncertainty regarding the determination of the commercial strategy of each of the companies involved.

*14 Article 3 of the Public Contracts Code (Legislative Decree No. 50/2016) establishes that with the term "Grouping
Temporary” a set of entrepreneurs, suppliers, or service providers is identified, also constituted
by private agreement, for the purpose of participating in the procedure for awarding a specific public contract,
by submitting a single offer, whereas articles 45 and 48 contain the relative discipline.

PROCEDURE AT1 to identify forms of anti-competitive agreements


The ban on anti-competitive agreements finds a derogation from articles 101 of the TFEU and 4 of law n.
287/90, which provide for the inapplicability of the prohibition when the anti-competitive nature of an agreement is overcome by the
benefits that it brings in terms of competition (*15).

Article 101(3) of the TFEU sets out four cumulative conditions, two positive and two negative, on the occurrence
of which the agreement, albeit potentially anti-competitive, can be considered permitted. Those conditions are
summarized as follows:


  • efficiencies achieved through improvements in production or

distribution of products or the promotion of technical or economic progress;

  • destination to the users of a suitable part of the profit deriving from the agreement;


  • necessity of the restrictions for the aforesaid purposes;


  • impossibility for firms to eliminate competition for a substantial part of the

products in question.

Likewise, article 4 of law no. 287/90 allows the AGCM to authorize prohibited agreements for a limited period
pursuant to article 2, meeting four conditions which paraphrase those identified by the Community law.


However, it should be noted that, following the entry into force of Regulation no. 1/20035 and the legal exception system connected to it, the instrument of the voluntary communication of agreements for the purposes of requesting an authorization in derogation has assumed residual significance, as evidenced by the application practice.
In addition to individual exemptions, i.e. relating to individual agreements, the Commission has the power to grant an exemption
generalized to entire categories of cartels through exemption regulations.


Among the exemption regulations currently in force at Community level, the main one is the EU Regulation n.
330/2010 regarding vertical agreements.
The Regulation declares the prohibition of agreements restrictive of competition inapplicable to categories of vertical agreements
and concerted practices that meet the specific requirements of the Regulation itself (articles 2 and 3).

*15 See LDCO §20.

In particular, for the purposes of benefiting from the exemption, it must be found that:

1- the market share held by the supplier does not exceed 30% of the relevant market on which it sells the goods or
services covered by the contract;

2- the market share held by the buyer does not exceed 30% of the relevant market on which it purchases the goods or
services covered by the contract.

However, the aforementioned benefit cannot operate if the agreement contains fundamental restrictions (so-called hard-core), i.e
restrictions of competition which are considered due to the probable damage they cause to the market
particularly serious (art. 4). These restrictions are therefore prohibited and their presence implies that the agreement
vertical, in its entirety, loses the benefit of the block exemption.

In particular, the following restrictions are considered:


  • the purchaser's right to determine his own selling price, without prejudice to the possibility for

supplier to impose a maximum selling price or to recommend a selling price, provided
that these do not equate to a fixed price or a minimum selling price as a result of pressure
exercised or incentives offered;

  • relating to the territory in which or to the customers to whom the buyer, who is a party to the agreement, without prejudice to

a restriction relating to its place of establishment, it can sell the goods or services which are the subject of the contract;

  • of active or passive sales to end users by members of a selective distribution system

(see infra) engaged in the retail trade, without prejudice to the possibility of prohibiting a member of such
system to carry out its activity in an unauthorized place of establishment;

  • of cross-supplies between distributors within a selective distribution system, including i

distributors operating at different commercial levels;

  • agreed between a component supplier and an incorporating buyer, of the supplier's ability to sell

such components as spare parts to end users, repairers or other non-service providers
appointed by the purchaser to repair or maintain its products.

According to the Commission, if an agreement contains one of the described restrictions, it is presumed, unless proven otherwise, that it falls within the scope of Article 101(1) TFEU and that it does not fulfill the conditions
in Article 101(3), resulting in the exclusion of the benefit of the block exemption.

On closer inspection, since it is a relative presumption, companies have the opportunity to demonstrate that, in the case
concrete, there are pro-competitive effects and that efficiencies likely to result from the hardcore restriction are likely to satisfy the conditions for exemption. However, it is always up to the Commission to assess the impact on competition before deciding, definitively, on the real existence of the aforementioned conditions.

This means that attention must always be paid to the effects of the agreement as they manifest themselves in
concrete and not already make an assessment in the abstract, expected that a vertical agreement apparently
anti-competitive may, in fact, prove to be beneficial.

The Regulation then identifies a group of obligations excluded from the benefit of the exemption (Article 5). In particular,
it is about:

1- non-compete obligations, the duration of which is indefinite or longer than five years, with the
clarification that non-competition obligations tacitly renewable beyond five years are assimilated to
those of indefinite duration. This includes any obligations, direct or indirect, that it imposes
the buyer not to manufacture, buy, sell or resell goods or services that compete with the goods
or services covered by the contract, or to purchase from the supplier or from another company indicated by the latter,
more than 80% of the total annual purchases of the contractual goods or services and their substitutes
made by the buyer on the relevant market;

2- non-compete obligations after the expiry of the contract, unless:

  • relate to goods or services in competition with the contract goods or services;

  • are limited to premises and land in which the purchaser operated during the period in force of the


  • last no longer than one year after the expiry of the agreement, with the possibility of imposing a restriction

not limited in time in relation to the use and dissemination of know-how that is not
entered the public domain;


3- direct or indirect obligation which imposes on the members of a selective distribution system not to
sell brands of particular competing suppliers. In this case, the purpose of the exclusion is to prevent you
prevents market access for a particular competitor. For selective distribution system,
in fact, it means a distribution system in which the supplier undertakes to sell the goods or services
object of the contract, directly or indirectly, only to distributors selected on the basis of criteria
specified and in which these distributors agree not to sell such goods or services to non-resellers
authorized in the territory that the supplier has reserved for this system.


Excluded restrictions always prevent the benefit of exemption from working, even if the limit is not exceeded
market share threshold. In any case, they are considered less severe than core restrictions so that the exemption can be applied to the remaining part of the vertical agreement where this is separable from the non-exempted restrictions (as opposed to hard-core restrictions whose presence prevents the agreement from may benefit from the exemption in its entirety).

PROCEDURE AT2 to analyze a vertical chord


Some horizontal agreements may also be considered compatible with competition law. Indeed, although they
are considered among the most delicate from an antitrust point of view, in some cases they can have a pro-competitive value
if they make it possible to achieve increases in efficiency or other forms of benefits (e.g. higher quality goods and/or
services or technological progress), transferable to consumers without competition inevitably resulting

In particular, in cases of cooperation agreements limited to defined stages of a production process, the parties,
having benefited from cooperation at the intermediate level of this process, they will continue to compete for each other
the sale of the finished product.

In the light of this, the Commission has identified some principles that must be applied in assessing the cases
in question because, in the Commission's words, “horizontal cooperation agreements can
result in substantial economic benefits, particularly if they combine complementary activities, skills or assets.

Horizontal cooperation between companies can be a suitable tool for sharing risks, reducing costs,
increase investments, pool know-how, increase the quality and variety of products and launch
innovations on the market faster”.

Therefore, as for vertical agreements, also for horizontal ones the Commission, through the publication of
a communication on horizontal cooperation agreements, has provided an analytical framework applicable to shapes
most common agreements, in order to verify whether they are compatible with the prohibition of restrictive agreements
competition and, if not, evaluate whether the pro-competitive benefits outweigh the restrictive effects, so as to
allow undertakings covered by the agreement to invoke the application of the exemption under Article 101,
paragraph 3 of the TFEU.

The most common types of horizontal agreements can be summarized as follows:

  • Research and development agreements (R&D): have as their object the joint realization by two or more

competing companies in a research project and possibly also in joint exploitation
of results. This type of cooperation can take place within a joint venture set up by
parties for this purpose or form the subject of a contract signed by the parties to the agreement.


  • Production agreements and specialization agreements: with the former, two or more companies agree to

jointly manufacture and/or supply certain goods and/or services; with the latter, the parties decide
unilaterally or reciprocally to specialize, thus ceasing the production of a given good for
buy it from your partner.


  • Joint purchasing agreements: these are agreements usually entered into by SMEs which, through purchases

in common, they aim to obtain volumes and discounts from their suppliers similar to those obtained from theirs
large competing firms. They too can be made by the parties either by the
establishment of a joint venture, or by concluding a contractual agreement.


  • Commercialization agreements: can realize the cooperation between competing firms

in relation to one or more business functions such as the sale, distribution or promotion of
products or services covered by the agreement. In principle, the legitimacy of this type of agreement can be argued if they allow for the shared use of a resource for the purpose of reducing costs or otherwise
rationalize the business; where, however, this effectively involves the definition of commercial aspects pertaining to the
distribution of the product (that is, the conditions under which the products must be
sold to the common distributor), it is likely to fall within the prohibition set out in Articles 101 of the TFEU and 2 of the
law n. 287/90. For example, a commercialization agreement could be deemed lawful under a
antitrust profile when it is essential to allow a company to access a market that
otherwise it would have been precluded (this is the case with the temporary groupings of companies participating in the
public tenders for the award of ownership of the provision of services and supplies or
of job production). On the other hand, an agreement which has as its object the fixing of sales prices, a
irrespective of the market power of the parties and the exclusive nature of the agreement, is usually considered


  • Standardization agreements: these have as their object the definition of technical or qualitative requirements for products

or services, or of current or future production processes or methods.



The functioning of a given market is not altered by the mere fact that a firm reaches
large dimensions in the same. Indeed, according to the relevant European jurisprudence, a company can well develop on the market through a virtuous process of internal growth and consequently assume a leading position on the market in question, ie a dominant position. What antitrust legislation - both European and national - forbids is the abusive exploitation of the market power of a company in this position (*16).

More precisely, articles 102 of the TFEU and 3 of law no. 287/90 forbid the company that holds a position
dominant within the European/national market or in a relevant part of:

  • directly or indirectly impose purchase, sale or other prices

unjustifiably burdensome/unfair contractual conditions;


  • prevent or limit production, outlets or access to the market, lo

technical development or technological progress to the detriment of consumers;

  • apply in business relations with other contractors conditions

objectively different for equivalent services, so as to determine for
they unjustified competitive disadvantages;

  • subordinate the conclusion of contracts to acceptance by others

contractors for additional services which, by their nature and according to custom
commercial, have no connection with the object of the contracts themselves.

*16 See Guidelines on the priorities of the Commission in the application of Article 82 [now 102] of the EC Treaty to the abusive behavior of dominated undertakings aimed at the exclusion of competitors, in OJEU [2009] C. 45, p.7 (“ Guidelines”), § 1 (“it is not in itself illegal for an undertaking to be in a dominated position and such a dominated undertaking has the right to compete on its own merits”).

This is an affirmation habitually repeated by the jurisprudence and decision-making practice in the matter of abuse of a dominated position.

In other words, constraints are placed on the behavior of a company in a dominant position in order to prevent it
to jeopardize effective and undistorted competition on the market. It follows that conduct
normally permitted to companies without such market power could be prohibited a
that company which instead holds the position of pre-eminence, by virtue of the special responsibility for the
functioning of the market that affects it.

Verification of the dominant position is clearly the necessary precondition for the application of the discipline
about abuse. The ascertainment of the existence of dominance in turn requires an analysis of the structure of the market
relevant. The first operation to be carried out in order to be able to assess whether a company holds a dominant position is,
therefore, the definition of the so-called relevant market.

Pursuant to antitrust legislation, the relevant market results from the combination of two quantities:

1- the product category (relevant product market), which includes all goods and services that may be considered by the consumer to be interchangeable or substitutable, due to their characteristics, their prices or the use to which they are intended;

2- the territorial area (relevant geographic market), meaning by this the area where the companies supply or are
potentially able to supply the aforementioned goods and services and where the conditions of competition are sufficiently homogeneous as well as, at the same time, considerably different from those present in the areas
contiguous geographic areas.

Once the preliminary operation of definition of the relevant market has been completed, to ascertain whether a company holds on
it a dominant position it is necessary to consider various elements, identified by the jurisprudence. In
particular,you need to check if:


  • the firm sells a large part of the products or services in that particular market, i.e. holds a share

market so-called significant. In this regard, it is useful to consider that a market share of less than 40% is
usually indicative of the absence of a dominant position; a share equal to 50%, however, comes
considered a serious indication of the existence of this position;

  • due to the economic characteristics of that market or by virtue of any institutional constraints, the

reaction possibilities of the other competitors are limited, to the point that the firm can behave in such a way
significantly independent of its competitors and customers (e.g. a firm can be considered in
dominant position when it has the possibility to set prices higher than those of its competitors for
comparable goods or services, without incurring the risk of rapidly losing a share of
market such as to frustrate the maximization of revenues to which the pricing policy adopted is functional);

  • for competing companies there are barriers, of a regulatory, technical or economic nature, such as

prevent or delay its entry or development into the relevant market.


Unlike the prohibition of agreements restrictive of competition, the rules that prohibit the abuse of a dominant position
they refer to market conduct adopted unilaterally by a company in a dominant position.


However, it should be noted that a dominant position on a given market can also be held by more than one
businesses jointly.
Both Article 102 of the TFEU and Article 3 of Law no. 287/90, in fact, refer to abuse, not only by one, but also by several companies. In this hypothesis, of so-called collective dominance, 
the abuse can occur when two or more companies, although independent from each other, are connected by economic relationships (not necessarily on the basis of agreements or other legal constraints), such as to choose a common market conduct and, therefore, to be perceived by the competitors and customers as a single dominant company.

In general, cases of abuse of a dominant position can be divided into two types:

1-exploitation so-called abuses, which usually result in conduct by a dominant company to the detriment of its commercial counterparts (e.g. in the case of requests for high prices for a raw material essential to the customer to offer its services in the market on which it operates);

2-so-called exclusionary abuses, which consist of unlawful conduct put in place to oust its competitors
from the reference market. In this case, the difficulty of applying the discipline consists in distinguishing between the behaviors with which the dominant company competes even in an aggressive manner but always in the context of a
competition on the merits, from behaviors that are not part of the normal competitive process.

Examples of recurring abusive cases are:


  • discriminatory practices to the detriment of customers or companies outside the industrial group to which it belongs

the dominant firm. The latter, in fact, cannot apply unjustified discrimination in relationships
trade with third parties and/or customers, through a differentiation in price or other conditions
contracts that does not correspond to a real difference in the costs incurred;


  • thethe refusal to contract opposed by a company in a dominant position, when the refusal determines

an alteration of the correct market dynamics, in terms of obstacle or impediments to access. The
a typical case is the unjustified refusal opposed by the owner/manager of an essential infrastructure - the so-called
essential facility - or by the company producing an input necessary for the production of a product
request by a competitor to access and use that infrastructure or that input to deliver certain
services. On closer inspection, it is equivalent to the refusal to contract: following up on requests for access with delay or
hinder them; making selective and unjustified reductions in the quality of the service; the subordinate access
to the infrastructure under unfair and/or discriminatory or, in any case, unjustified conditions;


  • pricing practices, among which the paradigmatic case is the adoption of so-called predatory prices, meaning by these

prices lower than the cost actually incurred by the company to offer certain goods and/or services. Prices
predators, although appreciated by consumers, can jeopardize permanence or entry on the market
of equally efficient new entrants and thus lead to more stable price increases in the future
and lasting;


  • exclusive and/or loyalty relationships. Exclusives can consist of both the imposition on customers of

be supplied exclusively, or for the most part, by the dominant company; both in the imposition on suppliers of
exclusively serve the dominant firm. In this sense, the granting of particular discounts or bonuses to customers, unrelated to actual cost advantages for the supplier, is similar to an obligation of exclusivity. The
abusive nature is inherent in the limitations and/or disincentives that customers, beneficiaries of such discounts or bonuses,
encountered in resorting to sources of supply offered by third parties;


  • binding practices. By jointly offering multiple products, the firm can leverage position

dominant position held on the market for one of those products in order to exclude competitors from the product market
matched. This category of abuse includes the practices of: tying or bundling, with which the company
conditions the purchase of the main product on the purchase of the combined product, for contractual reasons or
techniques (the main product is designed to work only with the firm's matched product); bundling
pure or bundle sale, where products are only sold together; mixed bundling, where the products are
also sold separately but the package is sold at a price lower than the combined price of the two
products purchased separately (therefore, it is a discount conditional on the purchase of multiple products).


The law n. 192/19989 on subcontracting, in article 9, introduces the prohibition of abuse of economic dependence.
Article 9 defines economic dependence as the situation in which an enterprise “is able to determine, in the
business relationship with another enterprise, an excessive imbalance of rights and obligations”; situation being evaluated
“also taking into account the real possibility for the party who has suffered the abuse to find alternatives on the market

Article 9 clarifies that the abuse of this situation can consist in imposing on the company with which one does business the
sub-supply contractual relationship unjustifiably burdensome and/or excessively unbalanced conditions a
own advantage; to arbitrarily terminate existing business relationships or to refuse to
sell or buy. On closer inspection, this is an exemplary list, so that other pipelines can also
integrate the prohibition of abuse of economic dependence.

In terms of sanctions, the abuse of economic dependence is punished with the nullity of the agreements through which it occurs
has been exercised and with possible compensation for the damages suffered.

In addition to the civil law consequences described, there may also be the imposition of administrative sanctions of
pecuniary type by the AGCM, competent to intervene where the aforementioned abuse also determines
an alteration of the competitive mechanisms of the market or constitute an abuse of a dominant position. That is
occurs when, even in the absence of a dominant position on the market, the entrepreneurial conduct has an impact that transcends the contractual relationship between the parties, so as to require an intervention by the Authority aimed at re-establishing the disturbed competitive order.

To date, there are no examples of the application of article 9 in the decision-making practice of the AGCM, but it has developed
extensive civil jurisprudence which has attempted to outline the scope of application of the prohibition.

PROCEDURE AT3 to verify the abuse of a dominant position


Antitrust law can also apply to state measures. In particular, Article 106 of the TFEU and Article 8 of the
law n. 287/90 are addressed both to the States and to companies, connected to various degrees and various titles with the public
powers. However, Article 106 specifies that competition rules apply to businesses
responsible for carrying out services of general economic interest (so-called SGEI) or operating under a monopoly regime "insofar as the applicability [...] does not prevent the fulfillment, in law or in fact, of the specific mission entrusted to them ”; article 8, paragraph 2, of law no. 287/1990, on the other hand, establishes that these rules do not find
application against the aforementioned companies “for everything strictly connected to the fulfillment of the
specific tasks entrusted to them.

Since undertakings entrusted with the SGEI, by virtue of the particular activity they carry out (*17), may have exclusive availability of certain goods, services or information, they cannot exploit the situation of
privilege they enjoy to the detriment of subjects who carry out activities connected with those reserved to them.


Therefore, to guarantee the conduct of a competitive confrontation "on equal terms", if these companies decide
to act in markets other than those in which they carry out the SGEI, it is necessary that:


1- operate under a corporate unbundling regime (art.8, co. 2-bis, ln 287/1990);

2- notify the AGCM of the incorporation of companies or the acquisition of controlling positions in companies operating in different markets (art. 8, paragraph 2-ter, Law No. 287/1990);

3- make available to investee or subsidiary companies in related markets, goods or services, including information, of which they have the exclusive availability depending on the activities carried out in the SGEI, guaranteeing

the same treatment under the same conditions also to other companies directly competing in said markets

(art. 8, co. 2-quater, ln 287/1990).

*17 The Authority has found dominant positions held by companies that operate by virtue of exclusive legal rights, for example, in the markets of waste collection and management, horse betting collection, airport infrastructure management, gas distribution and electricity, management of the integrated water system, management of the railway network or postal services, as well as brokerage services for rights of
author and local public transport services.



A company can develop not only by increasing the "turnover" of its products or services, but also
"concentrating" (*18) with other companies, i.e. concluding transactions that generate a permanent change in the control of one or more of the companies concerned or parts of them. Therefore, what is relevant for the purposes of determining the concentrative nature of an operation between two or more companies is the change in control.


Article 7 of law no. 287/90 contains a broad notion of control, aimed at bringing back within the ambit of
application of the reference discipline any operation that may lead to a lasting change of
market structures or any operation through which a company acquires the power to influence
the behavior of another enterprise or part of it in a stable manner.

This change can be implemented through the typical statutory methods of acquiring control, such as
example the purchase of the majority of the shares of a company which allows to acquire control of it
exclusive rights, or through any other means suitable for ensuring that one company exercises control - both de jure and de facto - over another company.

Pursuant to the relevant European and national legislation (Article 3, EC Regulation No. 139/200410 and Article 5, Law 287/90), the
types of operation attributable to the category of mergers are classified as follows:

TO)merger of two or more previously independent companies or parts of companies;

B)acquisition of all or parts of one or more companies;

C)establishment of a joint venture (or joint venture).

With regard to joint ventures, it is important to distinguish between joint ventures of a concentrating nature – subject to the
discipline in question – and joint ventures of a cooperative nature – subject to the regulation on agreements.
It falls under the first hypothesis, and, therefore, the constitution of the joint venture (so-called NewCo) can be qualified
as a concentration, if it possesses specific requisites that give it the character of the so-called full functionality, allowing it to have:


  • sufficient financial resources, personnel, tangible and intangible assets to be able to operate on a lasting basis

an economic activity


  • ownership of functions performed independently of the founding companies (so-called parent companies) and with character

of stability and durability. In other words, the joint venture will not have to operate in the exclusive or,
at least, prevailing interest of the parent companies;

  • ability to run the company with its own independent management. The managers of the joint venture

they must be able to directly take the main strategic decisions relating to the management of the same,
in the absence of mechanisms of interference by the founding companies in the ordinary decision-making processes of the

On the other hand, joint ventures fall into the second hypothesis which, lacking the full-function nature - in the sense that they are not
can be considered autonomous economic entities to all intents and purposes - present coordination risks. In
in this case, the operation to set up the joint venture may be subject to evaluation by the party
of the Authority, in the light of articles 101 of the TFEU and 2 of the law n. 287/1990.

*18 In competition law, mergers are all transactions that change the structure on a lasting basis
of the control of a company and therefore the structure of the market.

On closer inspection, according to the definition of concentration above, it does not matter whether control has been acquired
through one or more successive legal acts, provided that the end result constitutes a single concentration.

According to the general orientation expressed by competition law, in fact, with respect to a case divided into several successive and/or interconnected legal acts, it is necessary to have regard to the final result, i.e. the economic purpose pursued by the parties. Therefore, for the purposes of a correct application of the antitrust discipline, this purpose must be identified: that is, to determine the unitary nature of several transactions, it is a question, in each
case in point, to evaluate whether they are interdependent, so one would not have been created without the other.


With reference to the relevant parameters for such an assessment, the Commission observed that the existence of a
conditional link is usually demonstrated if the transactions are legally connected, i.e. if the agreements are linked to each other by a link of mutual conditionality. Even de facto conditionality may be sufficient to treat the various operations as a single merger. To this end, it is necessary to evaluate whether or not each of these transactions necessarily depends on the conclusion of the others, based on economic, industrial or even just behavioral indicators.

If then a series of interconnected operations does not have a concentrative nature, nevertheless it can assume
importance for the applicability of the rules on agreements. In fact, formally distinct cases may be the subject of joint discussion, where, for example, they are overall functional to a unitary plan for the reorganization of the offer on the market by the undertakings concerned. With respect to this possible unitary design, the various operations that make it up would be configured as methods of execution of a broader cooperation agreement; if entered into between competitors, they could be treated as a horizontal cartel.

From the antitrust perspective, the most worrying aspect linked to merger operations is the risk that a company, merging with others, substantially reduces competition on the reference market,
increasing its ability to raise prices and apply disadvantageous conditions for users. From here
the need for preventive control of operations exceeding certain turnover thresholds.


Such preventive control is intended to prevent the creation of a market structure that may result
detrimental to competition and which could not be remedied by an ex post intervention, implemented through
the competition rules relating to the prohibition of restrictive agreements or abuse of a dominant position. Could
occur, in fact, that, by virtue of the structural characteristics assumed by a given market as a result of a
concentration, the operators active on that market have less incentive to compete, but without
engage in conduct liable to be punished pursuant to antitrust regulations.

The competence to carry out preventive control on a merger operation belongs to the AGCM or to the
Commission, depending on the turnovers of the companies involved in the operation in question.

More precisely, pursuant to article 16 of law no. 287/90, are subject to preventive control (*19) by the
of the AGCM the concentration operations in which the turnover achieved in the Italian territory by the acquired company e
by the companies concerned exceed certain thresholds, updated annually taking into account inflation. With
reference to joint ventures, the Authority specifies that “the turnover of any joint ventures must be taken into account
contributions to them made by the companies that acquire joint control, with the consequent deduction of the same from the turnover of the latter".

Instead, the exclusive scrutiny of the Commission will intervene if the turnover of the companies concerned is integral
so-called community thresholds, i.e. when:

TO)the total worldwide turnover achieved by all the companies concerned exceeds 5 billion euros;

B)the total turnover achieved individually in the EU by at least two of the undertakings concerned is higher than
€250 million, unless each of these firms generates more than two-thirds of its total turnover

in  EU within one and the same EU country (Article 1, EC Regulation No. 139/2004).

If the size thresholds established by national or community legislation are exceeded, the operation of
concentration will have to be reported to the competent competition authority, using a specific
form. The information submitted must be complete and truthful. If the parties notify a
concentration by providing a seriously inaccurate, incomplete or untruthful communication, the deadline within which
start an investigation is interrupted and starts again only from the receipt of the information that
integrate the original communication.

Mergers have to be notified before the legal completion of the acquisition, ie before
that the operation is concretely implemented, to allow the Authority (or the Commission) to assess, in advance, whether the operation itself is suitable for establishing or strengthening a position of dominance and thus altering the competitive dynamics of the market.

*19 See Communication Methods, Section D.2,,There is no precise deadline within which to communicate an operation
to the Authority. The rule is that the notification must take place before the concentration takes place, i.e. before
the purchaser obtains “the ability to substantially influence the economic behavior of the company subject to the

Following the notification, a pre-investigation phase begins (the so-called Phase I) lasting 30 days (25 days if the procedure is the responsibility of the Commission), after which the Authority (or the Commission) must decide whether to authorize the operation or deepen its assessment, starting the preliminary phase (so-called Phase II).


The latter lasts 45 days (90 days if the procedure is the responsibility of the Commission) after which the Authority may alternatively decide whether:

TO)authorize the operation;
B)authorize it, but subject to the adoption of corrective measures;
C)forbid it.

As for the corrective measures applicable to overcome the competitive issues raised by the Authority and allow
the authorization of the operation, they can be of both a structural nature - ie transfers or divestments of companies, parts of a business or significant shareholdings in companies - and of a behavioral nature - ie commitments to do and/or not to do in the future commercial policy.

Considering that the adoption of corrective remedies, imposed by the Authority or proposed by the parties, to remove the effects
anti-competitive of a merger is a widely used tool, cases of prohibition decision are few

The violation of the prohibition to carry out a concentration operation and the non-compliance with the prescriptions
necessary to restore the conditions of competition imposed by the Authority are subject to administrative sanctions
pecuniary not less than 1% and not more than 10% of the turnover of the activities of the company object of the
concentration (art. 19, paragraph 1, ln 287/90).

Furthermore, the Authority can impose fines of up to 1% of the turnover of the year preceding that in which it is carried out
the challenge to companies that do not comply with the obligation of prior notification (art. 19, co. 2, ln 287/90).
For concentrations of Community importance, in the same cases, the Commission can impose a fine
administrative fine up to 10% of the turnover of the companies involved (Article 14, paragraph 2, EC Regulation no.

In the case of a merger of national importance, following the notification, the
publication of a notice relating to the planned operation on the AGCM web page, in order to allow third parties
to submit comments on the matter.

PROCEDURE AT4 to verify the compatibility of a merger with the reference legislation





The Commission and the AGCM have broad powers of investigation into the conduct of suspect companies
to infringe the competition law.

First, businesses may be required to provide information about certain facts or circumstances, as well as
to show documents.

The requests of the Commission and/or of the AGCM can be made both informally - by the shortest means, ie al
telephone or by informal letter - or formally by letter. Care must be taken as, in the event of a lack of response or a late and/or incomplete and/or untruthful response to a formal request, administrative fines are envisaged.

In particular, pursuant to national legislation, the unjustified refusal by the requested subjects to supply
information/documents is punished with administrative fines of up to approximately 26,000 euros; the production of
untruthful information/documents up to approximately 52,000 euros (art. 14, paragraph 5, ln 287/90). In accordance with the law
community, on the other hand, the same behaviors can be punished with a fine equal to 1% of the turnover
carried out in the financial year preceding the commission of the infringement (Article 23, EC Regulation No. 1/2003).


Specifically, the opposition of:


TO)constraints of confidentiality or competence imposed by company regulations or internal prescriptions;

B)need for self-protection against the risk of tax or administrative sanctions;

C)needs to protect corporate or industrial secrecy, except in cases where the Commission or the AGCM recognize such

In addition to the power to request information, both the Commission and the AGCM have the power to carry out checks
inspections at the company headquarters, also with the assistance of the Guardia di Finanza. As a rule it is about
investigations carried out "surprise", aimed at directly viewing and collecting a copy of the relevant company documents
for the ongoing investigation.

In this case, it is a good rule to examine both the provision with which the competition authority has authorized i
officials to carry out the inspection, where the purpose and object are indicated; both the administrative provision
with which the same resolved to start the preliminary investigation and from which, therefore, the alleged unlawful conduct contested results. This analysis, also conducted with the help of officials, is functional to
understand which documents are relevant to the inspection and which documents are not,


Administrative and accounting books and documents, as well as non-documents, may be subject to control
official, internal and informal, regardless of the corporate position held by the author of the same (eg.
correspondence, notes, manuscripts, diaries). Furthermore, it is increasingly frequent to check the stored documents
in optical and/or IT supports and, in particular, in electronic mail systems.


Inspections can be carried out on all company premises and grounds, including means of transport used for
carry out business activities. In this regard, it is useful to consider that while the AGCM can only carry out inspections
at the headquarters of the company, the Commission, subject to the authorization of the judge, can also carry out inspections at the place of residence or private domicile of directors, managers or employees, if there are reasonable
you suspect that company books or records are kept there. Clearly, in this hypothesis, the inspectors cannot have access to objects or extract copies of documents strictly pertaining to the individual's personal sphere.


During the inspection, the officials in charge can request that the owners and employees of the company come
provide them with information and explanations, not only regarding the documentation found, but more generally about it
to the object of the investigation carried out. In the event of inaccurate or untruthful answers or refusal to produce documents,
even in this case, administrative fines will be imposed.


In the light of the foregoing, if the Commission or the AGCM conduct inspections, it is important that
all the staff offers the widest availability and loyal collaboration.

At the same time, it is important that all employees pay attention, aware of the delicacy of
statements made which are recorded in the minutes. Therefore, it is necessary to answer the officials' questions clearly and comprehensively or, where this is not possible, reserve the right to provide a written answer at a later time. For the same reason, it is advisable to verify these declarations and ask the officials for any clarifications deemed necessary.


At the end of the preliminary investigation procedure, the competent competition authority adopts against the parties a
reasoned decision which can be of three types:

  • compatibility;

  • assessment and injunction of the infringement;

  • imposition of administrative fines.

In the first case, the Authority considers the case examined compatible with the rules of competition. This case is distinguished from the closure of the proceeding due to lack of evidence where, although it has not been ascertained
an infringement, a legitimate expectation cannot arise in the correctness of the conduct examined by the point of
antitrust view, since it has not been declared.

Instead,in the second hypothesis, in which with the closure of the investigation an antitrust infringement is ascertained, the Authority
warns companies to put an end to the violation, assigning them a reasonable deadline within which to comply, penalty
the adoption of a sanction measure.

In the event of conduct deemed seriously harmful to competition, the Authority, in addition to wary businesses since
continuation of the infringement, has the power to impose administrative fines, setting the deadlines within
which companies must pay. For each company or group of companies participating in the infringement, the fine can reach up to 10% of the total turnover achieved during the previous business year (art. 23, EC Regulation n. 1/2003 and art. 15, ln 287 /90).


As anticipated, first the Commission and then the AGCM issued specific Guidelines aimed at illustrating i
criteria for quantifying the sanctions imposed in the field of cartels and abuse of a dominant position, which include -
among others - the duration and seriousness of the infringement, the work done by the undertakings to eliminate or mitigate the consequences of the infringement and the economic conditions of the recipients of the fine.

The sanctioning measure adopted by the Authority can be challenged by the recipient companies
before the Regional Administrative Court (TAR) for Lazio (articles 133 and 134, Legislative Decree no. 104/201014); the
sanctioning measure of the Commission can be challenged before the General Court of the EU.
However, it should be noted that both the Commission and the AGCM have the power to adopt, even ex officio,
specific precautionary measures in cases of urgency due to the risk of serious and irreparable damage to competition
and, if they ascertain, following a summary examination, the existence of an infringement of the law (Article 8, paragraph 2,
EC Regulation no. 1/2003 and art. 14-bis, ln 287/90).

Failure to comply with the decision providing for precautionary measures exposes you to administrative fines, which are not
must exceed: 10% of the total turnover achieved during the previous business year, in the case of a decision
of the Commission (art. 23, paragraph 2, EC Regulation n. 1/2003); 3% of the turnover, in the case of a decision by the AGCM
(art. 14-bis, co. 3, ln 287/90).


The institute of the decision with acceptance of commitments, conceived as an exception to the ordinary procedure
ascertainment of an infringement, was originally envisaged by the Community legislation alone and, in 2006, it was
also introduced in the national regulatory system.

Pursuant to article 14-ter of law no. 287/90 - analogous to article 9 of EC Regulation no. 1/2003 - “Within three
months from the notification of the opening of an investigation to ascertain the violation of articles 2 or 3 of this
law or articles 81 or 82 of the EC Treaty, companies can submit commitments such as to make the profile disappear
anti-competitive actions under investigation. The Authority, having assessed the suitability of these commitments, may, within the limits established
by Community law, make them mandatory for businesses and close the proceeding without verifying
the infraction".

The AGCM then adopted a specific procedure for the presentation and evaluation of the commitments, in detail
illustrated in a special communication.

It should be emphasized that, in this communication, the AGCM specified that a decision with commitments cannot be
assumed for so-called hard-core violations, i.e. for such serious restrictive or anti-competitive behaviors
to make it necessary to impose a sanction.

The procedure referred to in article 14-ter allows the companies concerned to propose the unilateral adoption of
suitable corrective measures to eliminate the anti-competitive profiles of the conduct subject to the investigation.
The commitments must be presented within three months of the notification of the opening of the investigation. However, the foretold
communication allows you to present a non-definitive version of the same well in advance of the
term of three months, in order to start discussions with the Authority on their content. Furthermore, it is specified that
the Authority “in any case reserves the right to allow in exceptional cases, on the basis of a reasoned e
timely request by the party, the presentation of commitments after the aforementioned deadline".

If the Authority deems the commitments not manifestly unfounded, it proceeds with their publication, in order to
allow interested third parties to submit their observations within the following thirty days (so-called market test).
The companies that have presented the commitments can, in turn, reply to the observations received and/or
introduce ancillary changes to the measures originally filed.

Having assessed the suitability of the commitments presented to remove the competitive issues raised at the start of the
preliminary investigation procedure, the Authority may, within the limits established by the Community legal system, make them obligatory for
companies and, therefore, close the proceeding without ascertaining the infringement.

In the event of non-compliance with the commitments made mandatory, the AGCM can reopen the proceeding and impose on the company
defaulter, a fine of up to 10% of the turnover.

At the basis of the institution of commitments, there are two needs:

TO)the public interest of the Authority save time and resources for carrying out the activity

preliminary investigation;


B)the interest of companies not to see own liability established, thus avoiding negative consequences related to a decision of ascertainment of the offence.

Lastly, it seems appropriate to point out that, in the practice of the AGCM, the decisions with commitments concerned
mainly proceedings initiated to ascertain cases attributable to vertical agreements or abuse of position


In addition to the decisions with commitments, in 2006, another institute of community derivation was implemented: the so-called
leniency programs. Through this institute, companies that communicate the existence of
an infringement or significantly cooperate in providing evidence with respect to an infringement of which
the Authority is already aware may benefit from immunity or reduction of the fine.


More precisely, article 15, paragraph 2-bis, of law no. 287/90 provides that “The Authority, in compliance
to the Community legal system, defines with its own general provision the cases in which, by virtue of the qualified
collaboration provided by companies in ascertaining infringements of the competition rules, the sanction
administrative pecuniary may be not applied or reduced in the cases envisaged by Community law".


Also in this case, with a specific communication18, the AGCM elaborated detailed methods of presentation
by the company of the leniency application and set the conditions for accessing this benefit.
The leniency program is based on the recognition of the difficulties associated with identifying and proving cartels,
in the absence of effective collaboration on the part of the participating companies. The AGCM was therefore
vested with the power to enhance this collaboration, modulating the sanctioning regime on the basis of timeliness e
quality of the information provided by the companies themselves.

It is, therefore, an institution that has a dual value. Indeed, it is an important tool
investigative policy and acts as a deterrent to companies wishing to participate in a cartel,
exposing them to the uncertainty that the other members could disclose the agreement in exchange for immunity or
however, a significant reduction of the fine.

As a result, compliance and leniency programs are closely linked.

PROGRAMMI          COMPLIANCE_cc781905-5cde-3194 -bb3b-136bad5cf58d_       _cc781905-5cde43-3194L-CBEN

As we have seen, in fact, an effective compliance strategy consists of a process aimed at preventing anti-competitive conduct or detecting it when it occurs. In this second case, once the infringement has been identified, the company that is a party to it must put an end to it and can also report its existence to the competition authorities, providing them with the evidence gathered thanks to the process itself. The more timely and detailed the complaint is, the more the complaining company will be able to aim for immunity.


On 25 September 2018, the Authority adopted the Guidelines on antitrust COMPLIANCE, aimed at
provide companies with guidance on:

  • the definition of the content of the compliance programme;

  • the request for evaluation of the program for the purpose of recognizing any extenuating circumstances;

  • the criteria that the Authority intends to adopt in the assessment for the purpose of recognizing the extenuating factor.

In particular, the Guidelines define, in line with international BEST PRACTICES,the
typical components of an antitrust COMPLIANCE program, including


  • the recognition of the value of competition as an integral part of the corporate culture,

  • the identification and assessment of the company-specific antitrust risk,

  • the definition of management processes suitable for reducing this risk,

  • carrying out training and AUDITING activities.

The company involved in an investigation procedure that intends to benefit from the extenuating factor must
submit a specific request to the Authority's offices, accompanied by an explanatory report, which
explain the reasons why the program can be considered adequate and the concrete initiatives put in place for
the effective and effective application/implementation of the programme.

As for the possible sanctioning benefits, for the COMPLIANCE programs adopted before the start
of the investigation, there is the possibility of a reduction up to:

15%, in the case of adequate programs that have worked effectively allowing the
timely discovery and termination of wrongdoing prior to commencement. In case the institute of the is applicable
clemency, this extenuating factor can be recognized only if a leniency application is presented;

10%, in the case of programs that are not manifestly inadequate, provided that the company integrates
adequately the program and start implementing it after the initiation of proceedings (and within six months
from the opening of the investigation);

5%, in the event of manifestly inadequate programs, where the company presents substantial changes to the
program after the start of the procedure (and within six months of the opening of the investigation).

For programs adopted from scratch after the start of the investigation, there is the possibility of benefiting from a reduction
up to 5% of the fine.

A mitigating factor of no more than 5% may be granted to a repeat offending company which already has a program of
compliance only against the presentation of amendments to the same after the start of the preliminary investigation procedure.
No extenuating factor can be granted to a repeat offending company that has already benefited from a reduction
antitrust fine following a previous investigation for having adopted a compliance programme. That too
in the event of changes to the program made after the initiation of proceedings.

No presumption of adequacy and effectiveness can be invoked by the company in the event that the
compliance is the subject of commitments made mandatory pursuant to art. 14-ter of law no. 287/90.
If the same company is involved in a subsequent proceeding, for the purposes of recognizing the extenuating circumstance, it is always its responsibility to provide all the elements necessary to demonstrate the concrete implementation of an adequate compliance programme.

With reference to groups of companies, in the context of antitrust proceedings which also involve the parent company,
in order for the latter's compliance program to be considered adequate, it must be adopted e
implemented at group level. For the purposes of assessing the mitigating factor, therefore, the program will be considered
adopted and implemented both by the parent company and by the subsidiaries Parties to the proceeding.


The adoption of a compliance program by the parent company will not be considered sufficient
to exclude the liability of the parent company for the anti-competitive conduct of its subsidiary.




In this annex, a review of some practical cases of decisions of the AGCM is proposed, with the aim of making the description of the typical cases that make up antitrust law more understandable - of which
in Annex I. The procedures reported concern cases in which the ascertainment of the offense has been definitive
concluded with a final judgment.


In case I446 - Airlines. fuel charge (2002) concerted practice regarding the introduction and amount of the fuel surcharge. Lazio Regional Administrative Court confirmed 14 September 2007, no. 8951. Airlines - Fuel Surcharge. the Authority considered that the companies Alitalia Linee Aeree Italiane SpA, Meridiana SpA, Alpi Eagles SpA, Air Europe SpA, Volare Airlines SpA and Air One SpA, by agreeing on the simultaneous application of a tariff supplement of the same amount, have implemented , in violation of the art. 2, co. 2, Law 287/1990, a complex agreement, consisting of a concerted practice which had as its object and effect the alteration of competition in the supply of the air transport service on national routes.

In case I685 - Costa Container Lines/Sintermar-Terminal Darsena Toscana (2009), the AGCM ascertained an agreement between two companies active in container handling services in the port of Livorno concerning the coordination of their behavior in relation to prices. In particular, the agreement was implemented through an agreement aimed at interrupting contractual negotiations with a customer by withdrawing all previous offers.


The objective of the coordination, therefore, was to bring the price back to a significantly higher level
of what the customer was managing to obtain during the negotiations with each of the parties to the agreement as well as avoiding price reductions in relations with other customers.


In case I694 - Pasta price list (2009), the AGCM ascertained an understanding between some pasta manufacturing companies based "on direct contacts and an exchange of information on their respective commercial policies, with the clear aim of determining a of common action and to eliminate the uncertainties on the reciprocal price behavior to be applied to distribution". In particular, the agreement had as its object and effect "concerted increases in the sale price of dry semolina pasta".

In case I695 - Bread price list (2008), the AGCM ascertained an agreement, in the form of the business association resolution put in place by the Union of Bakers of Rome and the Province, concerning "the disclosure [... ] of indications on the minimum selling prices of bread, to the public and wholesale, within the province of Rome”.


In case I649 - Manufacturers of chipboard panels (2007), the AGCM ascertained an agreement between some companies active in the production and marketing of chipboard panels aimed at "artificially maintaining the pre-existing market balance". In particular, the Authority found that the production quota, based "on the periodic scheduling of shutdowns, on the calculation of bonuses, on the valuation of technical and accidental shutdowns and, ultimately, also on cross-product supplies", represented " the main piece” on which the entire concertation system hinged.

In case I318 - Consorzio Industrie Fiammiferi (2000), the AGCM ascertained an agreement between the Consortium Industrie Fiammiferi and some consortium companies aimed at "defining the methods and mechanisms for sharing […]
of the production of matches intended to be marketed by the Consortium itself". Furthermore, the Authority considered that the Consortium had put in place with one of the consortium companies "an agreement aimed at the
distribution of the production of matches and the joint distribution of the same". With particular regard to the limitation of production, the AGCM has identified a series of conducts as implementation methods of the mechanism, such as: compliance with the historical quota calculated on the basis of sales presumably made by the Consortium; the transfer of products between consortium companies; production exchanges between member companies; the reduction of the production of the consortium companies to allow the marketing of matches produced by a foreign competitor company. The Authority, therefore, considered that this strategy appeared "aimed at crystallizing the market positions of the various companies and therefore at eliminating any competitive confrontation between them".


In case I646 - Manufacturers of marine paints (2007), the AGCM ascertained an agreement between some companies active in the production and marketing of paints "having as its object and effect the distribution of customers". In particular, the partitioning of the market was achieved "by identifying a common distribution rule based on respect for the historical customer according to which each paint manufacturer should have supplied its own customer without undergoing any competitive pressure from the other companies participating in the agreement ”. The Authority also found the presence of instruments for verifying deviations from the agreement and, in cases where the parties had not complied with the principle of redistribution of the historical customer, of so-called compensation mechanisms which consisted in the transfer to competitors, in period following that of the deviation, of contracts pertaining to it.



Court of the EU. sent. 3 July 2018, T-379/10 Keramg §§ 57-58 cartel for fixing the sale prices of ceramic sanitary ware and taps and fittings on the Belgian, German, French, Italian, Dutch and Austrian markets, with the exchange of confidential commercial information. The statistics disseminated by the AFICS association, while not concerning the individual or future prices of the cartel holders, prove the overall agreement for the coordination of the prices, corroborating the declarations of the leniency applicant); sent. 16 September 2013, T-379/10, Keramg, §§ 157
(exchange of information of a non-anti-competitive nature in itself is an indication of a continued unitary understanding).


In case I722 - International logistics (2011), the AGCM ascertained an agreement between companies active in the shipping sector concerning concerted increases in the price of international shipments of goods by land. In particular, the Authority considered that “it is sufficient for competitors to exchange information regarding their future commercial strategies for the conduct of each of them to necessarily take into account the indications received. Basically, once a price agreement has taken place, even any conduct that deviates from what has been established is conditioned by what has been learned during the course of the agreement and is not indicative of a truly independent conduct, based on purely competitive mechanisms [...]".


Coordination in participation in tenders can take various forms, some exemplified by the Authority in the cited Vademecum and examples of which are provided below which can be traced back to cases being analyzed by
of the AGCM.



it is characterized by the non-submission of offers by one or more companies in order to extend the contract
with the usual supplier or to distribute the work or the supply pro rata among all the companies involved in the contract.

The main manifestations of this practice can be:


  • concerted abstention from the tender;

  • the submission of a single bid or of a number of bids that is in any case insufficient to proceed

the award of the contract (when the contracting authority establishes a minimum number for the
regularity of the race);


  • the presentation of bids all characterized by the same amount (especially when the procedures

of the tender established by the contracting station provide for the cancellation of the tender or the
distribution of the contract pro rata).

In case I731 - Local health insurance tenders and Campania hospital companies (2011),  the AGCM ascertained an agreement between insurance companies implemented through "the division of participation fees in the tender or after the itself (co-insurance before or after the award), the exchange of lots and/or assignments in various tendering bodies, the cancellation and subsequent takeover with the aim of avoiding competitive confrontation and maintaining a certain stability of the services provided over time ”. The Authority then specified that "This coordinated participation [in the tenders] was revealed [...] as well as through recourse to the institution of co-insurance [...], also through other behaviors typical of the division of markets, such as the exchange of quotas or lots and the non-participation in competition on certain tenders”.



they are the offers presented by the non-contracted companies, which are characterized by clearly too much amounts
high or in any case higher than what the same subjects have offered in similar tender procedures, presented
in order to confer an apparent competitive regularity to the tender.

In case I148 - Supervisory Institutes of Sardinia (1996), the AGCM ascertained an agreement between companies active in the private security sector in the municipality of Cagliari. In particular, after considering that a first indication of a possible coordination was the "stability, over time, of the composition of customers made up of public bodies, as well as of the ENEL orders relating to properties located in the various areas of the province of Cagliari , of each institution”, the Authority proceeded to verify the conduct of each company in the tenders subject to the preliminary investigation. Therefore, it found, in general terms, that "the offers presented by each of the companies complained of have always been such as not to deprive the other two of the traditional clientele" and, more specifically, that "in many tenders the company that had previously performed the service for the contracting entity presented the offer at a higher level than the offers presented by the other companies in other tenders in the same period for similar amounts, i.e. at a level such as to make it envisage, in the absence of an agreement, failure to award. Despite this, the company interested in maintaining the service at the institution has always achieved the award”. Lastly, clarifying how the mechanism of soft offers had operated, the AGCM concluded that, in the tenders in which there was no participation of new companies, the two largest companies on the market "continued to apply increasing offer prices over time . This indicates that each of these institutes was able to exclude that the others would have presented offers corresponding to an effective competitive logic. In other words, in the tenders in which only the major institutes participated, each of them increased its offer prices, demonstrating that it did not consider it realistic that the competitors could decrease theirs in order to
regain lost market shares.


In case I740 - Municipality of Casalmaggiore-Gara for the assignment of the gas distribution service (2012), the AGCM ascertained an agreement between companies active in the sale and distribution of gas, deeming that the use of the ATI presented “the characteristics of an agreement between competitors aimed at
distribution among them of the concessions put out to tender according to a scheme reproducing the distribution of the existing concessions in the pre-tender arrangement”. The Authority, therefore, identified the unlawfulness of the conduct in the circumstance whereby "the Parties, who met the requirements to participate
autonomously, intended to divide up the concessions put out to tender without any reason of efficiency or rationalization of the service rendered which justifies recourse to a grouping of companies and at the lowest possible cost for the companies".



through the concerted rotation of offers, the predetermined operator always presents the most advantageous offer for each lot put up for auction on the basis of a systematic or rotational mechanism agreed between the participants.

In this way, the participants agree to eliminate competition with each other in relation to lots related to
certain geographical areas or to certain customers, to allow the awarding of the same lots to "historic" operators, maintaining the status quo.

In case I639 – Disinfectant products (2006), the AGCM ascertained an agreement between various companies operating in the sector of antiseptic and disinfectant products aimed at sharing the Italian market for the supply of these products. In particular, the Authority noted that for the purpose of implementing the agreement le
the parties made use of "the activity known as "market monitoring" carried out by Pan Service, a company that provided various types of services to companies operating in the sector of supplies to healthcare facilities", thanks to which they prepared divider tables and schedules containing the indication of minimum prices and maximum price brackets. Through this system, therefore, the companies have proceeded with a division of the market - based on the tendency to maintain customers served in the past, as well as on the division of new customers on the basis of a criterion of proportionality with respect to the market positions achieved - and a of prices.



In case I212 - Exclusive ice cream distribution contracts (1996), the AGCM ascertained an agreement between Unilever and a plurality of commercial establishments consisting in the stipulation of contracts containing exclusive clauses which "impose the obligation on the retailer to purchase all of its ice cream requirements solely from the principal company and at the same time exclude that the same can market competing products at its own point of sale". The Authority, in particular, considered that in this way the parties "have induced a serious alteration of the competitive dynamics" causing a "raising of the barriers to market entry".


In case I569 - Consorzio Grana Padano (2004), the communicated agreement concerned the inter-association agreement concerning the repositioning of the PDO Grana Padano on the market for the production and marketing of hard cheese like grana through two main instruments:
raising the quality standards of production and making greater advertising investments to be financed through an additional contribution mechanism on a progressive basis.
The AGCM considered that the agreement satisfied the four conditions required for the granting of the derogating authorization and, in particular: an improvement in the conditions of the offer against the repositioning of the product on the market in terms of quality, more correct perception of the
value of the same by consumers and higher sales even in the presence of an increase in price; the necessity of the restrictions in the absence of which the consent of the consortium members on the entire repositioning project, including the qualitative and
the application of the additional contribution mechanism; the non-elimination of competition from the market, affected by less than fifty per cent, due to the permanence of the possibility of experiencing a certain intra-brand competition and the possible increase in
interbrand competition.



In case A437 – Esselunga/Coop Estense (2012), the AGCM ascertained an abuse of a dominant position by Coop Estense in the market of supermarkets and hypermarkets in the Province of Modena. The Authority found the dominance "on the basis of a series of structural factors, including market shares, in absolute terms and relative to its competitors, the presence of administrative barriers to entry, reputation and historical presence in the area of Coop itself, and as well as behavioral elements that
combine to create strategic barriers to entry”. With regard to market shares, the Authority, firstly, noted that they have remained at a significant level at the provincial level, and, secondly, that Coop's position, in addition to growing over time, has maintained in the same period four to five times higher than that of the direct competitor in the hypermarket market and higher than
about twice in the supermarket market. The barriers to entry, on the other hand, have been identified in the scarcity of areas destined for commercial activities, in the long times (often several years) for the issue of the relative authorizations as well as in the constraints connected to the openings for merging existing licences.


In this case, moreover, the AGCM considered that the dominance of the company also derived from the strong roots in the provincial territory, with a multi-year presence, as well as from the strength and reputation of the brand.


In the national casuistry there are no precedents for ascertaining abuse of collective dominance. However, in the case A357 - Tele2/Tim-Vodafone-Wind (2007), the AGCM, when initiating the proceeding, had assumed the existence of a position of collective dominance by Tim, Wind and Vodafone in the market for wholesale access services to mobile network infrastructures. In particular, the Authority had assumed collective dominance by virtue of the presence of the conditions cumulatively required by the Community jurisprudence for said case to take the form of: "i) the existence of an incentive and the existence of the ability of the companies belonging to the oligopoly to coordinate; ii) the ability, on the part of the companies themselves, to identify any deviant behavior and to implement, in this case, effective strategies of punishment; iii) the absence of market constraints, in the sense of lack of power on the part of competitors and consumers to react to the negative effects of coordination”. Despite the initial prospect of collective dominance, the case ended with the attribution to each of the parties, separately considered, of conduct that could be qualified as abuse of
dominant position.



In the case A376 - Aeroporti di Roma/Airport tariffs (2008), the AGCM ascertained an abuse of a dominant position perpetrated by the company Aeroporti di Roma - the exclusive concessionary for the unitary management of the Rome - Fiumicino and Rome - Ciampino airports until 2044 - in the cargo handling market (ground assistance to aircraft, passengers and goods delivered at the airport). In particular, the Authority identified the abusive conduct in the "application of unfair and excessively onerous fees" for the refueling service, the sub-concession of office space and the pricing for access to the Fiumicino cargo city .



In case A428 - Wind-Fastweb/Condotte Telecom Italia (2013), the AGCM ascertained an abuse of a dominant position by Telecom Italia, the incumbent operator in the supply of access and voice telephony and internet access services broadband – which also has the infrastructure
essential for the provision of the same services. In particular, Telecom, by abusing its dominant position in the network infrastructure sector, hindered the expansion of competitors in the downstream markets of fixed network access, voice telephony services and broadband Internet access. More specifically, this abuse was substantiated by the adoption of two distinct conducts: the opposition to competitors of an unjustifiably high number of refusals to activate wholesale services and the application on the downstream market of prices for the service of retail access to the fixed network for large business customers which, compared to those applied upstream for the unbundling service, ie the access service to the final section of the network to the customer, do not even allow an equally efficient competitor to operate in profitably on a lasting basis in the downstream market.



In case A267 – Diano/Tourist Ferry Boat-Caronte Shipping-Navigazione Generale Italiana (2002), the AGCM ascertained an abuse committed by a group operating in the ferry business across the Strait of Messina in the ferry service market of wheeled vehicles across the Strait of Messina. In particular, the Authority identified the abusive conduct in the determination of "a particularly aggressive tariff policy, consisting in the application on the Reggio Calabria-Messina route of tariffs which were not sufficient to cover both the short and long-term incremental costs ”. The AGCM then noted that the tariff policy adopted was made sustainable thanks to the income of
position from which the group benefited on another route, not contestable, where the operating margin achieved is very high. Furthermore, the exclusionary intervention of the overall strategy implemented by the group was confirmed by the overlapping of the timetables with those of the competitor, as well as
in the fixing, in response to the variations of the departures made by the latter, of times such as to overlap, or anticipate by a few minutes, those of the competitor.

This document is subject to change. Last revised 27 July 2023

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