Part 1 - B. Obligation to notify, calculation of turnover, concept of undertakings concerned, and ancillary restraints
Pursuant to Section 16(1) of the Act, a prior notification to the Authority is required for all concentrations where both the following circumstances occurs:
- the aggregate nation-wide turnover of all undertakings involved exceeds € 482 million euro (revised as indicated in that Section);
- the aggregate nation-wide turnover of the target undertaking exceeds € 48 million euro (as revised).
Aggregate nation-wide turnover means the turnover from the sale of products and services during the previous financial year on the Italian market after deducting returned products and discounts, as well as taxes directly relating to the sale of products and the provision of services. For foreign-registered undertakings, the amounts in foreign currency must be converted into euro at the average exchange rate of the relevant financial year.
The criteria for calculating the turnover of credit and other financial institutions and insurance companies are set out in Section 16(2) of the Act.
Only the turnover of the undertakings or parts of the undertakings being acquired is to be taken into account.
Where the concentration involves the acquisition of parts of one or more undertakings, two or more operations between the same persons or undertakings over a two-year period are to be considered as one single concentration finalised on the date of the most recent operation.
The Authority generally applies the principles set out in the European Commission notices adopted in on 10 July 2007 under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings ("Commission Consolidated Jurisdictional Notice ").
Furthermore, Section 13(1) of Law No. 153 of 1 March 1994 Official Gazette No. 55 of 8 March 1994 [Replaced by Article 26(1) of the Legislative Decree No.28 of 22 January 2004]. requires the prior notification of any merger or acquisition as a result of which, in any one of the 12 main towns within film distribution zones (Rome, Milan, Turin, Genoa, Padua, Bologna, Florence, Naples, Bari, Catania, Cagliari and Ancona), an undertaking would hold, directly or indirectly, a market share larger than 25 per cent of the turnover from film distribution and, simultaneously, more than 25 per cent of the operating movie theatres.
***
A merger or acquisition often involves agreements supplementary to the concentration itself. Such agreements must be notified to the Authority for it to ascertain whether or not they are ancillary to the concentration. For this purpose the Authority generally applies the criteria set out in the European Commission notice 90/C 203/53 (on restrictions ancillary to concentrations) OJ No. C203, 14.8.1990. [Replaced by the Commission notice 2001/C 188/03 regarding restrictions directly related and necessary to concentrations, OJ No. C 188 of 2 July 2001; editor’s note].
