Decree of the President of the Republic No.217 of April 30th, 1998

Full Text

1. For the purposes of this Regulation:
a) the Act means Law no. 287 of 10 October 1990;
b) the Authority means the Competition Authority referred to in Section 10 of the Act;
c) the Board means the Chairman and the four members of the Authority;
d) the offices means the organizational units established pursuant to Section 10(6) of the Act;
e) the bulletin means the bulletin provided by Section 26 of the Act.

1. This Regulation applies to proceedings relating to agreements, abuse of a dominant position, concentrations, and the fact-finding investigations pursuant to the Competition Act, Law no. 287 of 10 October 1990.

1. Voluntary notification of agreements pursuant to Section 13 of the Act shall be submitted by each undertaking or by all the undertakings which are parties to agreements, or by consortia and associations of undertakings in relation to resolutions adopted by them, and, together with all annexes, shall contain all the information which make it possible to appraise the contents of the agreements.

2. Notification shall be submitted on a special form provided by the Authority and published in the bulletin, and contain all the information and include all the schedules and annexes that are needed to appraise the agreement.

3. The Authority shall notify the undertakings if the notification is incomplete or inaccurate. In such instances the deadline referred to in Section 13 of the Act shall be counted from the date on which the information supplementing the original notification is received.

4. Any change to any essential element in the original notification must be made known to the Authority as soon as the parties or any one of them become acquainted with it. For the purposes of the deadline referred to in Section 13 of the Act, notification of a change is equivalent to notification of a new agreement.

5. Notification shall be signed by the legal representatives of the undertakings or by persons vested with a special power of attorney and shall be submitted to the Authority together with any power of attorney held, by registered post with recorded delivery or by hand delivery against for a receipt.

1. Requests to clear agreements pursuant to Section 4(3) of the Act as an exemption to Section 2 of that Act, shall be submitted by each undertaking or all the undertakings parties to agreements or by consortia and associations of undertakings in relation to resolutions adopted by them, and shall contain all the information and all the annexes which make it possible a full appraisal of the contents of the application.

2. Requests for exemption shall be submitted on a special form provided by the Authority, to be published in the bulletin, giving all the information and containing all the schedules and annexes that are essential for requests to be examined.

3. The Authority may request further information and supplementary elements from the undertakings concerned in order to be able to appraise the application. In this case, the deadline referred to in section 4(3) of the Act shall run from the moment this information is received.

4. Notification of any change to the essential terms of the application known to the parties or any one of the parties thereto shall be immediately submitted to the Authority by the parties, or by any one of them, as soon as they are known. For the purposes of the deadline referred to in Section 4(3) of the Act, notice of any change is equivalent to the notification of a new application.

5. For the purposes of signing and submitting applications, the provisions of Section 3(5) apply.

6. Requests for authorisation for exemption shall be made public in the bulletin in a short notice relating to the agreement for which authorisation has been requested, inviting third parties to submit their comments within 30 days of publication.

7. The exemption referred to in Section 4 of the Act shall not produce any effects prior to the date of the application.

1. Prior notification of concentrations pursuant to Section 16(1) of the Act shall contain all the information, together with all annexes and other elements necessary for the concentration to be fully appraised.

2. Notifications shall be submitted on the form provided by the Authority and published in the bulletin, on which the information, annexes, and all other elements referred to in sub-section (1) above are set forth.

3. The Authority shall notify the undertakings if there are serious inaccuracies, omissions or untruths in the notification. In this case the 30-day deadline provided by Section 16(4) of the Act shall be counted from the date upon which the information supplementing the original notification is received.

4. For the purposes of signing and submitting a notification, the provisions of Section 3(5) shall apply.

1. After examining the proposals of the offices, the Board shall decide to commence the investigation referred to in Section 14 of the Act in the event of alleged infringements of Section 2(2), Section 3 and Section 6(1) of the Act.

2. In the case of exemption requests pursuant to Section 4 (3) of the Act, the investigation shall begin the moment the application for clearance is submitted with all the information and essential annexes. If requests for exemptions are submitted during the course of an investigation that is already in progress under Section 14 of the Act, the Authority may appraise such applications during the course of the ongoing investigation, and where necessary extend the deadline set for completion.

3. The Authority’s resolution to initiate the investigation shall indicate the essential elements relative to alleged infringements, the deadline for completing the proceeding, the name of the person responsible for the proceeding, the office where the case files may be accessed, and the deadline within which the undertakings and other interested persons may exercise the right to make representations under Section 14(1) of the Act.

4. Notice of a commencement of the investigation shall be served on the undertakings and parties concerned, as well as the persons which, pursuant to Section 12(1) of the Act, have a direct, immediate and present interest in the investigation and have submitted reports or complaints of relevance to the commencement of the investigation. In the event that the investigation refers to undertakings in the insurance industry, ISVAP shall immediately be notified.

5. Notice may be served by an officer or any other employee specifically commissioned by the Authority, either by hand or by post, following the procedures referred to in Article 149 of the Code of Civil Procedure.

6. If it is impossible or particularly burdensome to serve notice personally in view of the large number of addressees of the notice, it may also be served by publication in at least two Italian daily nationwide newspapers or by any other appropriate form of publicity.

7. Notice that the investigation has begun shall also be published in the bulletin indicating the details of the measure.

1. The following may participate in the proceeding:
a) the persons on whom notice of the commencement of the investigation pursuant to Section 6(4) has been served;
b) persons representing public or private interests, and associations representing consumers that might be directly, immediately and presently damaged by any infringements forming the subject matter of the investigation or by any measures adopted as a result of it, provided that they submit reasoned requests to intervene within 30 days of the date of publication in the bulletin of the notice of commencement of the investigation.

2. Those taking part in the investigation may:
a) produce written submissions, documents, arguments and opinions;
b) have access to documents pursuant to Section 13.

3. Those who have been notified of the commencement of the investigation pursuant to Section 6(4) may make representations pursuant to Section 14(1) of the Act.

4. In the course of the hearings, the interested parties may be represented by their legal representative or by a person holding a special power of attorney for the purpose. They may also be assisted by consultants of their choice, even though this shall not entail the suspension of the hearing.

1. The powers of investigation provided by Section 14(2) of the Act are exercised from the date on which notice is served of the commencement of the investigation on the interested undertakings and persons, and may begin simultaneously with the notification. In the event that notification is served on several parties, the powers may be exercised in respect of each one of them from the moment the notice addressed to them is individually served.

2. The offices may also receive the representations of any individual, undertaking or person, for the purposes of complementing the investigation, and make written records of any information thus collected.

3. The Board shall in all instances be kept informed of the results of all investigations made during the examination procedure.

4. Pursuant to section 54(4) of Law no.52 of 6 February 1996, the Authority may also employ the services of the Guardia di Finanza (Customs and Excise Police).

1. Requests for information and for the disclosure of documents must be made in writing, and served following the procedures referred to in Section 19.

2. They must briefly indicate the following:
a) the facts and the circumstances in relation to which clarification is requested;
b) the purpose of the request;
c) the deadline for reply or document disclosure, consistently with the urgency of the case and the nature, quantity and type of information requested, and taking account of the time needed to obtain it;
d) the procedures to be followed for disclosing the documents, and the individual or individuals to whom the documents may be disclosed or the information requested may be notified;
e) the penalties applicable in the event of a refusal to supply the information or to disclose the requested documents, or of any omissions in them or delay in disclosing them, and the penalties for the disclosure of inaccurate, untrue or false documents or information.

3. The original or certified copies of all the documents requested for disclosure shall be supplied, indicating the proprietors or the legal representatives of the undertakings concerned.

4. Requests for information and disclosure of documents may also be made verbally in the course of hearings or inspections, and the party concerned shall be notified thereof and a written record made of the indications provided in sub-section(2) above. In the event of a verbal and immediate response, or when documents are disclosed immediately, the information supplied may be received within the deadline set.

5. The disclosure of documents and the verbal disclosure of information shall be recorded in a written minute following the procedures referred to in Section 18.

6. Liability for supplying information and disclosing the documentation requested from undertakings or entities shall lie with the undertakings and their representatives, and in the case of entities, with or without legal personality, liability shall lie with their legal representatives according to the provisions of Statute or their own Articles.

1. The Board shall authorize inspections proposed by the offices on the premises of any party deemed to be in possession of company documents of relevance to the investigation. All documents shall be requested in advance when a government department is to be inspected.

2. Officials of the Authority charged by the official responsible for the case to perform an inspection, shall exercise their powers upon presentation of a written warrant specifying the subject matter of the investigation and the penalties for any unjustifiable refusal, failure or delay in supplying the information or disclosing the documents requested in the course of the inspection, and for supplying untrue or inaccurate information or false documents.

3. In no instance shall the following be considered justifiable grounds for refusal or failure to supply all the information and documents requested for the purposes of the penalties referred to in section 14(5) of the Act:
a) confidentiality, or the exercise of powers and authority imposed by company regulations or internal instructions, including oral instructions;
b) the need to protect the party concerned from the risk of fiscal or administrative penalties;
c) the need to protect company or industrial confidentiality, unless the Authority acknowledges particular requirements of this kind that have already been brought to its attention.

4. The term 'document' refers to any graphic, photographic or cinematographic, electro-magnetic or any other kind of representation of the contents of documents, including internal and unofficial documents, which have been produced and are used for the purposes of the undertaking’s operations, independently of the level of responsibility or rank as representative of the undertaking of the author of the document, as well as any other document that is produced by or is stored on a computer medium.

5. The officials referred to in sub-section (2) are vested with the following powers:
a) to demand access to all premises, land and vehicles of the party under inspection, excluding their place of residence or domicile which are extraneous to the operations of the undertaking which are being investigated;
b) to check all the documents referred to in sub-section (4);
c) to make copies of all the documents referred to under paragraph (b);
d) to request information and explanations to be given verbally.

6. In the course of inspections, the parties concerned may be assisted by consultants and advisers of their choice, even though this shall not entail the suspension of the inspection.

7. A written record, using the procedures given in Section 18, shall be drawn up of all the activities performed in the course of the inspection, with particular reference to any statements taken down and documents acquired by the inspectors.

8. In performing the inspection, the Authority may also request the assistance of the Guardia di Finanza (Customs and Excise Police) which, pursuant to section 54(4) of Law no. 52 of 6 February 1996, are vested with all the powers and authority provided by Presidential Decrees no. 633 of 26 October 1972 and no. 600 of 29 September 1973, as subsequently amended, and by all other fiscal legislation.

1. In relation to any matter of relevance to the investigation, the Board shall authorize the production of expert reports and statistical and economic analyses, and may consult experts, as proposed by the offices.

2. The measure with which expert testimony and analyses are requested, and the results thereof, shall be served on the parties to which the investigation refers, for the purposes of enabling them to exercise the right provided by Section 7(2), and on those having a direct, immediate and present interest pursuant to Section 12(1) of the Act, who have submitted claims, complaints, or reports of relevance to the commencement of the investigation or have intervened in any way in the procedure pursuant to Section 7(1)(b).

1. All the information acquired in the process of enforcing the Act and this Regulation shall only be used for the purposes for which it has been requested and, pursuant to Section 14(3) of the Act, it is to be treated as confidential and may not be divulged even to government departments and authorities, notwithstanding the obligation to report any matters governed by Article 331 of the Code of Criminal Procedure, and the obligation to cooperate with the institutions of the European Community, pursuant to Sections 1(2), and 10(4) of Law no. 287/90.

1. The parties directly involved in procedures concerning agreements, abuses of a dominant position, and concentrations pursuant to Section 7(1) have right of access to any documents produced or permanently retained by the Authority in the course of these proceedings.

2. Whenever the documents referred to subsection (1) contain personal, commercial, industrial and financial information of a confidential nature relating to the individuals or to the undertakings involved in the proceedings, right of access is permitted, wholly or partly, to the extent that is strictly necessary to enable them to make representations in respect thereof.

3. Access is not allowed to documents containing commercial secrets. Whenever these constitute evidence of the infringement of the law or contain essential information for the defence of the undertaking concerned, access may be granted to them but only in respect of such essential information for defence purposes.

4. When granting access in the cases provided by subsections (2) and (3) above, and in compliance of the criteria therein indicated, account shall be taken and all the necessary precautions taken to safeguard the interests of the individuals and the undertakings concerned against the divulgation of the confidential information or the commercial secrets in question.

5. Access shall not be granted to notes, proposals and any other documents drafted by the offices as part of the study or preparation of the official papers relating to the case.

6. Access may be wholly or partly restricted to the minutes and records of meetings of the Board and to documents pertaining to relations between the Authority and the institutions of the European Union, and between the Authority and the Authorities of other States or other international organizations whose disclosure has not been authorized.

7. Any parties wishing to safeguard the confidentiality or secrecy of information supplied shall submit a specific request to this end to the offices, containing details of the documents or parts of the documents from which they consider access should be withheld, specifying the reasons for the request.

8. Whenever the office deems that insufficient grounds exist in respect of confidentiality or secrecy to justify the request referred to in subsection (7) above, it shall notify the party concerned in a reasoned opinion.

9. When communications, notices, information, statements or requests are submitted individually or jointly by one or more undertakings, the information covered by company or industrial secrecy may be submitted separately in a schedule or annex. Similar precautions may also be requested by undertakings in respect of any joint hearings that may be held and of the minutes or records of such hearings.

10. The office may, giving reasons therefore, defer access to the documents requested until it has been ascertained that they are relevant for the purposes of acquiring evidence of infringements, but not beyond the date of the service of notice of the results of the investigation referred to in Section 14.

11. Right of access shall be exercised by submitting a reasoned request in writing, which the official responsible for the case shall act upon within 30 days, notifying the Board thereof.

12. The Board shall resolve on the procedures for exercising the right of access and on the costs of reproducing the documentation, the resolution for which shall be published in the bulletin.

1. Having ascertained that the proposals submitted by the office on the basis of the evidence acquired is not manifestly without foundation, the Board shall authorize notice of the results to be served on the undertakings concerned.

2. The offices shall notify the parties referred to in Section 6(4) of the date set for the closure of the investigation and its results, at least 30 days before that date.

3. The results of the investigation may be notified by publication in the bulletin or in any other appropriate form of publicity which shall be decided on a case-by-case basis in the event that the large number of parties involved makes it impossible to serve notice on all of them personally, or makes it excessively expensive. In this case, the publication of the notice must take account of the interests of the undertakings to ensure that no commercial secrets are divulged.

4. The parties indicated in subsection (2) may make written submissions and submit documents up to five days prior to the date of closure of the investigation indicated in the notice.

5. The undertakings and entities concerned may avail themselves of the right to be questioned and to question the Board. They must make a specific request to appear within five days of service of the notification of the results of the investigation. On receipt of this request, the Board shall set a date for the hearing and notify the undertakings concerned.

6. The Board may also hear other parties to the proceedings which have submitted a reasoned request to be heard.

7. The Board may also hear submissions from undertakings and interested parties, both separately and jointly. In the case of joint submissions, due account shall be taken of the concern of the undertakings that no commercial secrets relating to their activities be divulged.

8. A minute shall be drawn up of the hearing containing the main statements made by the parties following the procedures given in Section 18.

9. After the investigation has been completed the Board shall issue its final ruling.

1. The same procedure provided in this Regulation shall be followed when revoking the exemption referred to in Section 4(2) of the Act, after serving written notice to the parties concerned, using the procedures given in Section 6 (5). Authority to perform an investigation and the rights and powers of the parties concerned may be exercised from the moment notice is served, notwithstanding that the deadlines referred to in Section 14 may be reduced by one-third in cases of particular urgency.

1. For the purposes of the investigation referred to in Section 16(4) of the Act, the deadline period of 30 days indicated in Section 7(1)(b) shall be reduced to 10 days.

2. When the offices have acquired all the evidence they shall notify the parties under investigation of the deadline for the conclusion of their investigation, which shall at all events not be less than seven days.

3. If the deadline for concluding the investigation pursuant to Section 16(8) of the Act is extended it shall be notified to the parties concerned following the same procedures used to serve notice of the commencement of the investigation.

4. Whenever the Board does not consider it necessary to commence an investigation following an operation that has been duly notified the Board shall notify its conclusions on the matter to the undertakings concerned and to the Minister of Trade and Industry.

1. The commencement of the general fact-finding investigation referred to in Section 12(2) of the Act may be published in the bulletin.

2. During the course of the investigation referred to in sub-section (1) above, the offices may request the disclosure of information or documents, and may order inspections, expert testimony, statistical and economic analyses, or consult experts, following the procedures set forth in Sections 10, 11 and 12.

3. The penalties referred to in Sections 9 and 10 shall not apply, and reasons of company or industrial secrecy may be used in opposition to the request for information and documentation. The provisions relating to access are also inapplicable.

4. Notice of the outcome of the investigation may be rendered public by publication of the results in the bulletin.

5. If the investigation referred to in this section produces evidence indicating that Sections 2 and 3 of the Act have been infringed or that the conditions referred to in Section 4(2) of the Act obtain, the Board shall resolve to commence the investigations referred to in Section 6.

1. For the purposes of drawing up the minutes and records under the terms of this Regulation, setting out the main statements made by the undertakings involved in the operations to which those records refer, at the end of the hearing the minute in question shall be signed by the hearing officer and by the owner or legal representative of the aforementioned undertakings, or the persons vested with specific powers of attorney to sign in their stead.

2. Whenever any party does not wish to, or is unable to, sign the minutes, mention of this fact shall be made in the minutes together with an indication of the reasons.

3. A copy of the minutes or the relevant part of the minutes shall be given to the parties involved in the operations to which the minutes refer upon request.

4. The hearings may be recorded on tape solely for the purposes of drafting the minutes.

1. Applications and requests, the transmission of documents and the convening of parties shall be notified in one of the following ways:
a) registered post with recorded delivery;
b) hand delivery with receipt;
c) fax with a request for written confirmation of receipt;
d) telex or telegram.

2. The same provisions apply to the submission of documents and requests to the Authority relating to the investigation by the parties concerned or by third parties. In the case of service by telex, telegram or fax the documents shall be deemed to have been served on the date on which they were sent, save where the contrary can be proven.

3. When the notices are signed by the representatives of individuals and undertakings or entities, these representatives must give evidence of their powers of attorney.

1. Presidential Decree no. 461 of 10 September 1991 is hereby repealed.