Italy

1. Introduction

During the COVID-19 crisis, the Italian Competition Authority (“ICA”) has taken specific measures in the areas of misleading advertising and unfair commercial practices, such as: 

  1. ordering the cancellation of, as a precautionary measure, any reference to the efficacy against COVID-19 claimed by cleaning products and cosmetics sold on via a website; 
  2. blocking a website which advertised and distributed a device for the self-diagnosis of COVID-19, due to the information provided with respect to the efficacy and use of this device appearing ambiguous, unclear and overall misleading;
  3. blocking a crowdfunding platform for donations to be distributed to hospitals active in the areas of the country most affected by COVID-19. The platform claimed that such donations could have be made without any charge to the donors, however, there were transaction costs related to use of credit and debit cards and the platform also required donors to pay additional commission (which the donors were not aware of); and 
  4. suspending the distribution of an antiviral drug sold at more than EUR 600 and the blocking of the website selling the drug, which claimed it to be “the only drug effective against COVID-19.

With respect to the more fundamental areas of competition law – please see below. There has been no announcement by the ICA, nor politicians in general, suggesting that changes to Italian competition law are necessary or are being considered at this time.

2. Antitrust

  • Restrictions of competition which are necessary to achieve cost reductions or an improvement in supply must be carefully assessed by companies, with the assistance of legal advisors, to conclude whether the conditions set forth in Article 101(3) of the Treaty on the Functioning of the European Union (“TFEU”) are met. 
  • It is conceivable that there could be increased supply relationships between competitors in order to avoid short-term supply bottlenecks. 
  • The classic restrictions of competition, such as price fixing, territorial and customer allocation and exchange of sensitive commercial information between competitors will remain prohibited.

3. Abuse of market power

  • In the case of supplies, a dominant supplier must supply the affected customers on a non-discriminatory basis. 
  •  In the event of unjustified delivery stops, affected customers can defend themselves by means of an interim injunction by proving that the stops where, in fact, “unjustified” and there was an “urgency” to receiving the supply.  
  • In the long run, the crisis may increase the market shares of the surviving companies, bringing them within the scope of the prohibition of abuse.

4. Merger control

  • For the time being, the deadline regime of merger control in Italy remains unchanged.
  • The ICA made an announcement on 23 March 2020, as it commonly does at this time of year (rather than as a result of the COVID-19 crisis), stating that the updated turnover thresholds (slightly increased from the previous thresholds) must be exceeded to trigger the obligation to notify a concentration to the ICA. 
  • A concentration must be notified to the ICA if the Italian turnover of all the undertakings involved exceeds EUR 504 million and the Italian turnover of each of at least two undertakings concerned exceeds EUR 31 million.
  • The changes in the deadline regimes must be taken into account when planning transactions and, in particular, in the drafting of the relevant merger control clauses in sale and purchase agreements.

Authors

Picture of Paolo Scarduelli
Paolo Scarduelli
Picture of Lorenzo Bocedi
Lorenzo Bocedi