Notice regarding the requirements for operations pursuant to article 8 of Law no. 287 of 10 October 1990

PREFACE[1]

Article 11, paragraph 3 of law no. 57[2] f 05 March 2001 (on Provisions on market openness and regulation) has added paragraphs 2bis to 2sexies to article 8 of law no. 287 of 10 October 1990.

Pursuant to and in accordance with article 8, paragraph 2bis of this law and in reference to the businesses denoted by paragraph 2 of article 8 (i.e., businesses legally entitled to act as market monopolies for utilities/services in service of the general economic interest), such businesses are required to work through separate corporations when acting in other markets outside the context of the same paragraph 2.

The Antitrust Authority must receive prior notification of all mandatory separations regardless of the procedures used to realize them.

The Antitrust Authority, drawing on its first two years of experience with application of the new regulations, has issued the present Notice to inform interested businesses of several indications concerning the time limits for notifications as per article 8, paragraph 2ter and the minimal substantive content of said notifications. It also provides guidance for mandatory prior notification as per article 8.2ter in regards to operations executed in compliance with sector-specific regulations.

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A. TIME LIMITS FOR PRIOR NOTIFICATION

Prior to expanding their activities into new markets, as per article 8, paragraph 2bis, the interested businesses must communicate the methods employed to achieve corporate separation. More specifically, the interested businesses are called on to respect the following general criteria:

a. for cases involving corporate constitutions, notification must be provided before the new corporation is registered in the business registry. Documentation of corporate registration in the business registry must be presented to the Antitrust Authority within 30 days of the registration date;

b. for cases involving corporate divisions, notification must be provided before the division statement is registered in the business registry.  Documentation of registration in the business registry must be presented to the Antitrust Authority within 30 days of the registration date;

c. for cases involving corporate takeovers achieved through the acquisition of stocks or shares, the operation must be communicated prior to formalization of the final accord for transferring said stocks or shares. A certified copy of the final accord must be presented to the Antitrust Authority within 30 days of the stipulation date;

d. for cases involving corporate takeovers achieved through methods or instruments other than the acquisition of stocks or shares, the operation must be communicated prior to its execution. Documentation demonstrating the acquisition of control must be presented to the Antitrust Authority within 30 days of the acquisition date;

e. if the activities of corporations separated as per article 8.2bis do not assume the form of corporate constitutions or corporate takeovers, the operation must be communicated prior to its execution. Documentation demonstrating the finalization of the operation must be presented to the Antitrust Authority within 30 days of the finalization date.

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B. SUBSTANTIVE CONTENT OF PRIOR NOTIFICATIONS

Interested businesses are asked to include the following basic information in their notifications pursuant to article 8, paragraph 2ter of the law:

1. for the business submitting the notification (hereinafter business A):

• statute and articles of association of the business and description of the economic activity in question (plus a copy of any administrative measures and/or regulatory references of pertinence to said activity);
• copy of the resolution adopted to formalize the corporate separation;

2. for new corporations communicating their constitution, corporations engaging in takeovers or corporations intendingto operate separately pursuant to article 8, paragraph 2bis (hereinafter business B):

• statute and articles of association of the business and description of the economic activity in question;
• control structure (including any informal agreements or accords of relevance for this purpose);

3. description of the operation

4. for purposes of ensuring equal opportunities for economic enterprise in the market:

• indication of goods and/or services that business A could provide to the advantage of business B;
• description of the nature of these goods and/or services, with special attention to the motives and grounds for business A to provide them;
• indication of the possibilities and conditions - in physical/legal terms – necessary for third parties to gain access to the goods or services described above.

Should the businesses in question learn of any substantial changes to the reported information, such changes must be communicated to the Antitrust Authority in a timely manner.

The substantive content described above reflects the minimum requirements - in cases of this nature, however, the Antitrust Authority reserves the right to request additional information should the supplied elements be deemed inadequate to provide a meaningful characterization of the operation being communicated.

Businesses filing notifications as per article 8, paragraph 2ter, of the law may classify certain information and/or documents or parts thereof as being confidential, and will need to explicate why said information and/or documents should not be divulged or published.

Should a business that has communicated or intends to communicate an operation pursuant to article 8, paragraph 2ter find that this same operation must also be communicated pursuant to article 16, paragraph 1 of law no. 287 of 10 October 1990, or intends to communicate said operation for the purposes and effects of article 13 of the same law, it must file separate notifications using the dedicated Forms[3].

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C. NOTIFICATION PER ARTICLE 8.2TER AND OPERATIONS EXECUTED IN COMPLIANCE WITH SECTOR-SPECIFIC REGULATIONS

After the entry into effect of articles 8, paragraph 2bis et seq. of law no. 287/90, a complicated and detailed regulatory corpus was formulated to address the corporate separation provisions of different sector-specific regulations.

The following devolves from this particular circumstance:

-  corporate separations executed by businesses as per paragraph 2 of article 8 in order to enter new markets as per paragraph 2bis are required to file prior notification with the Antitrust Authority pursuant to article 8, paragraph 2ter of the same law even if the operation is executed in compliance with mandatory corporate separations as prescribed by sector-specific regulations;

-  mandatory corporate separations executed in compliance with sector-specific regulations that have already been finalized as of the date of publication of the present Notice are released from the prior notification obligation pursuant to article 8, paragraph 2ter if the businesses submit the prescribed notification within sixty days of the date of publication of this Notice in the Bulletin of the Antitrust Authority.

[1] Unless specified otherwise, the text herein employs the following abbreviations:
“law”: law no. 287 of 10^th October 1990 (on Laws for protecting competition and the market) published in Official Journal no. 240 on 13^th October 1990;
«Antitrust Authority»: Autorità Garante della Concorrenza e del Mercato, as per article 10 of the law.
[2] Published in Official Journal no. 66 of20^th March 2001
[3] Form on Methods for communicating company mergers, published in Bulletin on 1 July 1996 (special edition), supplement no. 2 of Bull. no. 19/1996, and Form for communicating agreements, published in Bulletin on 1 July 1996 (special edition), supplement no. 1 of Bull. no. 19/1996.