PRE MERGER NOTIFICATION FORM - AGREEMENT NOTIFICATION FORM
PRESS RELEASE
The Italian Competition Authority adopted on June 5th, 1996, two new filing forms:
(a) a new pre-merger notification form;
(b) a new negative clearence and exemption application form.
These new forms are two important instruments that the Authority is sure will foster a more constructive and effective relationship with the parties in the area of competition law enforcement. The documents were developed after having consulted a selection of firms, competition law experts and other qualified organizations.
The new forms will help firms by providing them with a detailed guide, both regarding the nature of the mergers subject to notification, and the various procedures that can be followed in case of agreements.
The information provided by the firms will increase the speed and accuracy of the Authority's appraisal.
The new forms were published as a Bulletin's special issue and will come into force on July 1st, 1996. Copies of the forms can be obtained on request by the Italian Competition Authority (via Liguria, 26 - 00187 Roma; tel. 0039 6 4816.2474), as well as on the Web site (http://www.agcm.it).
The Authority's staff is available to supply any interested party any necessary assistance, especially in the first stages of enforcement.
Pre-merger notification form:
the new form replaces the one adopted on May 1991. The new arrangement specifies more clearly in what instances a merger is subject to notification under Section 16 of Law no. 287/90 (merger or acquisition of independent firms), as well as in what situations there is no obligation to submit notification.
Operations that do not constitute mergers:
in addition to the operations referred to in Section 5 of Law no. 287/90 (transitional acquisitions by banks or financial institutions of shares in firms; cooperative joint ventures), and to the "infra-group" mergers, the new form points out that for an operation to be classified as a merger, it is necessary that the parties involved carry out an economic activity.
Operations that not require a notification:
mergers that, with well-founded certainty, do not interest national markets, in the case of acquisitions of foreign firms which have not exported in the last three years, do not export and will not export their own products in Italy, are not subject to the filing requirement.
These last two changes to the form will reduce the number of pre-merger notifications: if these modifications had been applied to the period 1990-1995, the reduction would have been substantially of nearly 8%.
Furthermore, the two different filing forms were developed, in order to allow for the acquisition of in-depth information only for those mergers leading to the constitution of significant market shares.
Negative clearence and exemption application form:
this form aims at promoting the voluntary submission, on behalf of firms, of negative clearance notifications and exemption applications, so that the Authority will be able to ascertain the eventual anticompetitive effects of agreements and concerted practices. In order to foster such notifications, the Authority intends to mitigate fines in those cases when parties notify an agreement voluntarily and wait for the Authority's formal clearence before carrying it out. In over five years of activity, the Authority has received 47 voluntary applications for negative clearance and 24 exemption requests. In the first case, the Authority has initiated 19 investigations, of which 13 were concluded with a cease and desist order; whereas, with regards to the 24 exemption applications, the Authority found that - in compliance with Section 4 of Law no. 287/90 - conditions for exemption were met only in four cases.