Transcript Merger Review in Italy Substantive and Procedural Rules

Competition Policy in a Global
Perspective: a view from the Italian
Competition Authority
Trento, December 12, 2008
Alessandra Tonazzi
Directorate for Research and
International Affairs
Italian Competition Authority
The views expressed herein are those of the
author and should not be attributed to the
Italian Competition Authority
Layout
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A brief introduction on the Italian Competition
Authority
Issues presented by Globalization of Antritrust
Networks: ECN and ICN
Other international bodies: OECD, UNCTAD
and WTO
Technical assistance
Legal Framework
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Competition Act (Law No 287 of October 10, 1990) and
Implementing Regulation (DPR No 217/98): substantive
rules based on Community competition law Strong
emphasis on consumer welfare No sectors or firms
excluded
Misleading and comparative advertising
(Legislative Decree No 74 of January 25, 1992) and
Implementing Regulation (DPR No 284/03)
New competences: Conflict of interest (Law n. 215 of 20
July 2004) and unfair commercial practices (Legislative
Decrees 145-146/2007 implementing EU Directives
2006/114/EC and 2005/29/EC).
Legal Framework
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Decree Law no. 223/2006, strengthened the
Authority’s
powers
of
intervention
by
introducing new instruments
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Interim measures
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Commitment decisions
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Leniency programme
Institutional Design
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Independent administrative authority
Annual Report submitted to the Prime Minister
and to Parliament
Law enforcement decisions are all motivated,
based exclusively on competition considerations
and made public
No government overriding powers
Decisions are only subject to review by
administrative Courts:
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the Regional Administrative Tribunal (TAR) of Lazio
the Council of State (Supreme Administrative Court)
The Commission
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President and 4 Commissioners are jointly
appointed by the two speakers of Parliament for
a 7-year, non-renewable term and cannnot be
dismissed
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High institutional profile and professional
reputation requirements laid down in the law
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Position incompatible with any other professional
activity or office in public or private entities
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Decisions are taken by majority vote
Main Powers
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Competition law enforcement powers against
anticompetitive practices or mergers include:
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inspections
cease and desist orders
prescription of preventive or remedial measures
administrative fines
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Sectoral inquiries
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Advisory and competition advocacy powers vis-àvis Government and Parliament in relation to:
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existing and draft legislation or regulation
general administrative provisions
Competition: areas of intervention
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Agreements and concerted practices (cartels) (art 2
Law 247/90 ►art. 81 of EU Treaty)
Abuses of dominant position (art. 3 Law 247/90 ►
art. 82 of EU Treaty)
Mergers (artt. 5 and 6 Law 247/90): prior notification
of all mergers and acquisitions when the gross
aggregate turnover on Italian territory of the acquired
company exceeds 45 million euro or if the gross
turnover in Italy of all the companies involved exceeds
448 million euro (set 5 May 2008).
Issues presented by Globalization
of Antritrust
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Business increasingly conducted across
national markets: conduct in one country and
possible anticompetitive effects in other
countries
Proliferation of antitrust laws (and a very high
percentage of these laws enacted in the last
10-12 years)
Issues presented by Globalization
of Antritrust
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Preventing anticompetitive practices from
undermining benefits of trade liberalization
Promoting sound antitrust enforcement and
policy
Minimizing conflicts among antitrust laws and
policies
Encouraging cooperation and coordination
among antitrust enforcing agencies
National Bilateral and Multilateral
Approaches
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Many countries have tools to address
anticompetitive practices that take place
outside their borders
Antitrust cooperation agreements have been
very successful in facilitating cooperation and
coordination between antitrust enforcers
Antitrust issues have been addressed in
numerous multilateral fora
Competition Policy in the European
Union
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The EU operates a competition policy intended to
ensure undistorted competition within the single
market.
The Commission as the competition regulator for the
single market is responsible for antitrust issues,
approving mergers, breaking up cartels, working for
economic liberalisation and preventing state aid.
National Competition Authorities (NCAs) have parallel
competences to those of the Commission
Competition Policy in the European
Union
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Entry into force, on 1 May 2004, of Council
Regulation 1/2003 on the implementation of
the rules of competition laid down in Articles
81 and 82 EC developed the enforcement
powers of the competition authorities of the EU
Member States.
Modernisation of competition rules
Subsidiarity
Competition Policy in the European
Union
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Regulation 1/2003 made it compulsory for national
competition authorities (NCAs) to apply Article 81 and
Article 82 of the EC Treaty when the conducts may
affect trade between EU Member States
Regulation 1/2003 foresees mechanisms of close cooperation between all competition authorities in the
European Union. As a framework for these
mechanisms, the network of European competition
authorities (ECN) has been established
European Competition Network
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The ECN has been established, in particular:
to agree on working arrangements and cooperation
methods, in keeping with Regulation 1/2003, and to
provide an efficient framework for the obligatory and
optional information mechanisms;
to establish a continual dialogue between the different
enforcers, to discuss and build a common competition
culture approach.
It is a network of countries applying the same
competition rules
European Competition Network
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Powers and competences:
The ECN as such does not have any autonomous
powers or competences. It is not an institution, and it
does not have any legal personality.
The ECN is the framework for the close cooperation
mechanisms of Council Regulation 1/2003.
At the same time it is a discussion forum dealing with a
variety of topical issues of interest to its member
authorities.
European Competition Network
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Contacts are frequent at all levels of administrations.
Transparency within the Network about relevant cases
is ensured by means of standard forms providing
limited details in an electronic case database.
Moreover, working groups have been established
where the Network members can discuss general
issues or issues relating to certain sectors. There are
no voting rules, because this type of cooperation relies
on consensus building.
European Competition Network
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Usually the competition authority that starts investigations
retains responsibility for the case.
Issue of a possible re-allocation: if a single practice
affecting trade between Member States is subject to
multiple procedures carried out at the same time by several
Network members.
In these situations these authorities start discussions about
a possible re-allocation with a view to a quick and efficient
sharing of work within the network. There must be a close
connection between the infraction and the territory of a
Member State, in order for the competition authority of that
Member State to consider itself "well placed" to handle the
case.
European Competition Network
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If a case needs to be re-allocated to protect
competition and the Community interest effectively,
members of the Network strive to ensure that it is
handed to one, well placed authority wherever
possible.
The duty to inform the other network members either
before or immediately after the first formal investigative
measure, where acting under Article 81 or 82 EC,
allows the detection of multiple proceedings (for
instance parallel complaints) and allows an efficient
and rapid re-allocation if appropriate.
OECD, WTO and UNCTAD
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All these organizations deal with competition
issues
However…not only competition
Different rules on membership (and different
numbers…)
Co-operation and coordination with ICN in
order to avoid duplications
OECD
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Participants: 30 member countries
The Competition Committee is the premier source of
policy analysis and advice to governments on how best
to harness market forces in the interests of greater
global economic efficiency and prosperity.
The OECD’s governing Council has adopted a number
of non-binding Recommendations on competition law
and policy. In addition, the Competition Committee
has adopted Best Practices on information exchange in
cartel investigations.
World Trade Organization
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Participants: 153 countries accepting WTO
rules on trade
It has a Working Group which has been a
valuable
educative
forum
fro
sharing
experiences and helping to build a culture of
competition among a wide range of countries
UNCTAD
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Participants: 192 members of UN (not necessarily
adopting a competition law or even a free market
economy)
“Code on restrictive commercial practices” approved by
a conference of the United nations, adopted in 1980 by
the General Assembly of the united nations and
addressed especially to UNCTAD
Annual conference in Geneva – advances in debating
competition issues
International Competition Network
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A network of countries applying different
competition rules
Enhance cooperation among antitrust agencies
in order to improve the effectiveness of their
actions and reduce the cost of parallel
enforcement
Development of a set of basic general
principles
International Competition Network
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Distinguishing features of ICN:
Inclusiveness: agency representatives from
around the globe are full members, not
observers or invited guests.
Openness: representatives from the private
sector,academia and other international
organizations dealing with competition issues,
so called non-government members ( NGA’s)
International Competition Network
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Joint Work Products
Focus on a small number of projects each year,
guaranteeing a manageable workload to facilitate
timely deliverables.
The result should be clear, concise and pragmatic
guidance for developed and developing competition
agencies.
Focus on identifying best practices from around the
world, rather than protecting or legitimizing existing
domestic systems (ex: recommended practices)
International Competition Network
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Goal of Soft Convergence
The recommended practices are endorsed and adopted by
the ICN.
Because the ICN is not a rule-making body, members are
under no obligation to ensure their domestic laws reflect
these practices. It is up to each agency to decide whether,
and how, to implement the recommendations.
This illustrates another significant feature of the ICN:
recognition of the need for greater communication and
cooperation in the realm of antitrust enforcement not as a
result of some treaty obligation; rather, it is a community of
interest.
Capacity building and technical
assistance
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A very important area of the international
activity
Many programs within EU (entry of new
Member States): Twinnings, Taiex
Programs with developing countries