THE PROHIBITION OF ABUSE OF ECONOMIC DEPENDENCE

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
satisfactory".

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

​

​

CHAPTER 2.8 - COMPANIES RESPONSIBLE FOR CARRYING OUT SERVICES OF GENERAL ECONOMIC INTEREST OR WHICH OPERATE IN A MONOPOLY REGIME

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.

​

​

CHAPTER 2.9 - MERGER OPERATIONS BETWEEN FIRMS

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
NewCo.

​​

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
transaction"

​

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
frequent.

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.
139/2004).

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.

​

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

CHAPTER 2.10 - THE POWERS OF THE COMPETITION AND MARKET AUTHORITY AND OF THE EUROPEAN COMMISSION

​

THE POWERS OF INVESTIGATION

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
needs.

​

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.

​

DECISION-MAKING POWERS

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).

​

​

DECISIONS WITH COMMITMENTS

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
dominant.

​

CLEMENT PROGRAMS

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.

​

​

CHAPTER 2.11 - GUIDELINES ON ANTITRUST COMPLIANCE

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.

​

​

PART 3 - CASE CASE

PREMISE
CHAPTER 3.1- AGREEMENTS RESTRICTING COMPETITION
CHAPTER 3.2- ABUSE OF DOMINANT POSITION AND ECONOMIC DEPENDENCE
CHAPTER 3.3- CONCENTRATION OPERATIONS BETWEEN FIRMS
CHAPTER 3.4- THE AGCM'S DECISION-MAKING POWERS

​

​

PREMISE

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.

​

​

PRICE FIXING

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”.

​

​

LIMITATION OF PRODUCTION

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".

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THE SEGMENTATION OF MARKETS

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.

THE EXCHANGE OF INFORMATION

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 [...]".

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COORDINATION IN PARTICIPATION IN PUBLIC TENDER

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.

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BOYCOTT OF THE RACE

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.

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The main manifestations of this practice can be:

• concerted abstention from the tender;

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• 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).

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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”.

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CONVENIENT OFFERS

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.

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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.

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SUBCONTRACTS OR ATI

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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".

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ROTATION OF OFFERS AND MARKET ALLOCATION

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.

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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.
 

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THE VERTICAL AGREEMENTS

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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".

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THE REGIME OF EXEMPTION OF AGREEMENTS

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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.

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CHAPTER 3.2 - ABUSE OF DOMINANT POSITION AND OF ECONOMIC DEPENDENCE

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VERIFICATION OF THE DOMINANT POSITION

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.

THE COLLECTIVE DOMINANCE

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.

DISCRIMINATING PRACTICES TO THE DAMAGE OF CUSTOMERS OR COMPANIES OUTSIDE THE INDUSTRIAL GROUP TO WHICH
THE DOMINANT COMPANY BELONGS

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 .

THE REFUSAL TO CONTRACT

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.

THE PRACTICES OF PRICING

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.

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