Because of the above-mentioned 2012 change in the law, which now entails two cumulative merger filing thresholds, the number of merger cases have substantially decreased. The IAA reviewed around 21 cases up to April 2018, 57 cases in 2017, 51 cases in 2016, 44 in 2015, 40 in 2014 and 59 cases in 2013 (which will leave the IAA far from the 451 cases in 2012 or even more so from the 843 and 817 cases respectively in 2007 and 2008). However, as highlighted below, the recent 2017 law change in the second threshold (summarised in question 5), has recently at least inverted this trend, and this was in fact triggered by the concern expressed by the IAA to the Parliament that its merger jurisdiction had been narrowed down too far.
In 2017, the IAA opened a Phase II investigation in only two cases. In the Gruppo editoriale l’Espresso/Italiana Editrice case, concerning the book publishing sector, the IAA’s main concerns were the horizontal overlaps, as the merged entity would have had a 90-95 per cent market share in the local area of Turin and a de facto monopoly in the local area of Genoa (see question 25), and the IAA was concerned that third parties would not have been able to exercise competitive pressure on the merged entity and the entry of new competitors was considered unlikely. The IAA accepted behavioural commitments to guarantee the entrance of new alternative operators and competitive pressure in the relevant market. In the Italcementi/Cementir Italia case, concerning the cement and ready-mix concrete sector, the IAA’s main concerns were that Italcementi would have gained (or reinforced) a dominant position in the market as well as the fact that the transaction could have facilitated coordination among independent cement manufacturers, owing to the reduction of the number of undertakings. Moreover, the IAA also considered vertical effects, as the merged entity would have been also active in the ready-mix concrete sector. The IAA accepted structural commitments (ie, the divestment of some plants) as well as behavioural ones.
In 2018, the IAA pursued several Phase II investigations, particularly in the first months. In the Profumerie Douglas/La Gardenia Beauty-Limoni case, triggered by a voluntary referral under article 4(4) (see question 31), the transaction would have resulted in the aggregation of the first and second operators in the market, both being each other’s closest competitor. As the combined entity would have gained a market share above 45 per cent in half of the relevant markets considered, and above 60 per cent in the other half, and as the IAA considered that the merged entity would not transfer to consumers any cost saving generated (see question 21), it was eventually deemed necessary to divest a number of stores to avoid overlaps in excess of 45 per cent in any of the 14 identified micro-markets. In 2I Rete Gas/Nedgia, regarding the distribution of gas in some regions in the south of Italy, the IAA was concerned that the concentration may lead to a strengthening of a dominant position in tenders for the awarding of the natural gas distribution service, which would have discouraged participation of competitors (see question 25). In the Cassa Centrale Raiffeisen Dell’alto Adige/Gruppo Bancario Cooperativo Delle Casse Raiffeisen case, the IAA’s main concerns (which were ultimately abandoned - as already explained) were the horizontal overlaps in the bank funding market, as the merged entity would have had a 45-50 per cent market share in the local area of Bolzano. Finally, in the NOAH2/Mondial Pet Distribution case, concerning the distribution of pet products, the IAA found a potential significant impediment to effective competition, as the merged entity would have a market share well above 45 per cent in some local areas, and two divestitures were accordingly required. Later, in November 2018 the already cited Luxottica Group/Barberini merger was authorised by the IAA upon commitments, which were mostly grounded on foreclosure concerns because of the integration of the parties’ respective frames and lenses capabilities.
In March 2019, a Phase II investigation was opened on the acquisition by Sky Italia of R2, the technical platform for the provision of terrestrial digital television services of Mediaset Premium. While this transaction may be abandoned - as anticipated - because of the concerns raised by the IAA, the case has been opened following a cooperation agreement between Sky and Mediaset that has already been in place for several months, and which, inter alia, resulted in the parties providing each other access to, and hosting in, the respective satellite and terrestrial digital platforms and channels, particularly after Mediaset’s exit from the market of the pay-tv contents of Serie A and Champions League football games (somewhat anticipating the consequences of the deal).
Over the past years, the IAA, while dealing with a wide range of sectors, seems to have overall focused its attention on access to key inputs and facilities and barriers to entry.
For instance, the IAA has been particularly concerned about slots in the airline and maritime transport sectors. Besides the Alitalia case (see question 32), there have been two cases involving Moby, a major ferry operator in Italy and the Mediterranean, acquiring two formerly state-owned ferry operators (Toremar and Tirrenia Navigazione). In the Moby/ToreMar-Toscana Regionale Marittima Phase II investigation, concerning the provision of liner transportation services for passengers and freight between the Tuscan coast and the Tuscan Islands, the IAA cleared the merger (in July 2011) subject to Moby’s commitment to divest six slots on the Piombino-Isola D’Elba route to its competitors. However, in 2016 the IAA fined Moby €374,000 for its failure to comply with the measures imposed in 2011.
With regard to the sectors currently under scrutiny, the energy sector (in particular gas distribution) seems to attract the IAA’s attention: after clearing the acquisition of SNAM (which in turn controls the largest operator Italgas), the IAA blocked the Italgas-Acegas/Isontina Reti Gas merger (see question 21). In Compagnia Valdostana delle acque/Deval - Vallenergie, the IAA determined that the merger would have created a near monopoly in the market for low-voltage retail energy sales to domestic clients in the Valle D’Aosta region. The merged entity would indeed have achieved a nearly 100 per cent share in terms of the number of points served in the domestic market and a 90+ per cent share in the non-domestic market for low-voltage connections. A good portion of the IAA’s analysis focused on the negative impact of the regional regulations that provided a barrier to entry. During the investigation, the IAA rejected the merging parties’ price commitment (ie, to freeze prices in the free market at particularly affordable levels for two years, with a possible extension to four) as the IAA deemed this insufficient to achieve the long-term elimination of the competition issues. In 2015, the IAA cleared with conditions a concentration in the electricity energy sector between Società Elettrica Altoatesina and Azienda Energetica. The IAA was concerned that the merged entity could restrict competition in the future market for a tender for the distribution of natural gas in the local area of Bolzano given the fact that the parties already held control over incumbent operators. The IAA imposed the complete sale of one of the subsidiaries involved in the tender and the divestment of a business, amounting to the 30 per cent share held in the market for the supply of natural gas to small-sized customers. Further, recently the IAA focused also its attention in the publishing and advertising sector: in fact, in 2016 and 2017 the IAA cleared with conditions three such concentrations, namely Reti Televisive Italiane/Gruppo Finelco, Arnoldo Mondadori Editore/RCS Libri and Gruppo Editoriale l’Espresso/Italiana Editrice (see earlier in this question).
Finally, from a merger control angle, the IAA increasingly seems to see itself as the watchdog for market structures at the local level, even going as far as identifying micro-markets through isochrone analysis, and requesting parties’ and market data at such geographical level even for non-problematic concentrations. Local ‘catchment’ areas were also considered in the Cassa Centrale Raiffeisen dell’Alto Adige/Gruppo Bancario Cooperativo delle Casse Raiffeisen banks merger, ultimately cleared without commitments in Phase II (2018).
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