New mandatory antitrust fee introduced and merger thresholds amended

The Italian Government has introduced two important changes to the Italian antitrust rules that will affect companies doing business in Italy.

The first is the introduction of a new mandatory fee that companies must pay annually to the Italian Competition Authority.

The second is a change in the merger turnover thresholds, which will result in a significantly reduced number of mergers being notified to the authority.

New mandatory antitrust fee

The Italian Government has introduced a completely new form of financing for the Italian Competition Authority. Companies with a turnover exceeding € 50 million must now pay the authority a mandatory annual antitrust fee. The fee is calculated as 0.008% of the previous accounting period’s turnover, up to a maximum of € 400,000. For example, companies with a turnover exceeding € 5 billion must pay an annual amount of € 400,000.

Companies must pay this fee every year regardless of any merger being notified and any antitrust cases pending or commenced before the authority. The fee must be paid by October 30, 2012 for 2013 and by July 31 thereafter. It is not yet clear how the new fee will apply in practice, for example, whether global or domestic turnover must be taken into account for the calculation of the new fee, or whether companies that do not have a physical presence or do not conduct sales in Italy will be exempt. The authority will clarify the new fee’s scope of application in a regulation to be adopted in the near future.

Changes in merger control

The Italian Government has changed the way that turnover thresholds operate for the purpose of triggering a merger notification to the Italian Competition Authority. As of January 1, 2013, mergers must be notified to the authority when both of the following turnover thresholds are met:

• the combined aggregate domestic turnover of all undertakings exceeds € 468 million in the previous financial year; and

• the aggregate domestic turnover of the target undertaking exceeds € 47 million in the previous financial year.

With the introduction of this change, effective as of January 1, 2013, the two turnover thresholds set out above become cumulative.

Up to December 31, 2012, they remain alternative, i.e. it is sufficient that at least one of them be met in order to trigger a merger notification.

The introduction of cumulative turnover thresholds will result in a significantly reduced number of mergers being notified to the authority.

The Italian Government has also eliminated, as of January 1, 2013, the filing fee for merger notifications. Up to December 31, 2012, when notifying a merger the acquiring company must pay a filing fee to the Italian Competition Authority, which amounts to 1.2% of the value of the transaction, with a minimum of € 3,000 and a maximum of € 60,000.