Italy

• Pages: 293-314

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Chapter IX

ITALY

A. Introduction

Italy introduced a competition law (Italian Competition Law, ICL) in

1990.1 As is the case in other EU member states, the Italian prohibitions

on restrictive agreements and abuse of dominance are modelled on

Articles 101 and 102 of the Treaty on the Functioning of the European

Union (TFEU).2 Additionally, pursuant to Article 1(4), the ICL must be

interpreted in such a way as to ensure consistency with the EU

competition rules. Accordingly, the Italian antitrust authority (Autorità

Garante della Concorrenza e del Mercato, AGCM) and the Italian courts

must take into account decisions by the European Commission

(Commission) and judgements of the European Court of Justice (ECJ)

and the General Court (GC) .

Much of what has been discussed in the European Union chapter

above is therefore also relevant in Italy. However, on account of the

two-tiered structure of competition law as it applies in Italy (i.e., EU and

Italian competition rules), the parties to intellectual property (IP)

transactions should always confirm their EU analysis in light of the

Italian rules if the agreement may affect commerce in Italy.

B. The Sources and Basics of Italian Competition Law

The ICL sets out a comprehensive competition law regime, including

prohibitions on collusive and unilateral restraints of trade. The AGCM

1. Competition and Fair trading Act, Law 10 Oct. 1990, n.287, in Gazz. Uff.

13 Oct. 1990 n.240 [hereinafter Italian Competition Law or ICL]. Where

this chapter refers to Articles without citing a source, such reference is to

the ICL.

2. Treaty on the Functioning of the European Union, Sept. 5, 2008, 2008

O.J. (C 115) as amended by the Treaty of Lisbon Amending the Treaty

on European Union and the Treaty Establishing the European

Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of

Lisbon]. The texts of Articles 101 and 102 of the TFEU are identical to

the text of Articles 81 and 82 of the EC Treaty, which was amended and

renumbered by the Treaty of Lisbon effective December 1, 2009.

294 Antitrust Issues in International IP Licensing Transactions

enforces the ICL across all industries.3 Additionally, since 1996, the

AGCM is empowered to apply Articles 101 and 102 of the TFEU.4

Article 2 prohibits restrictive agreements and concerted practices

(mirroring Article 101 of the TFEU),5 and Article 3 prohibits the abuse

of sole or collective dominant positions, substantially along the lines of

Article 102 of the TFEU.6

1. Agreements that Restrict Competition

Article 2 prohibits agreements and concerted practices that have as

their object or effect an “appreciable” prevention, restriction or distortion

of competition. Similar to Article 101 of the TFEU, Article 2 applies to

hard-core horizontal and vertical restrictions (such as price-fixing,

market or customer allocation or resale price maintenance) and also to

less egregious restraints of trade such as certain provisions in IP licenses,

depending on the terms of the IP agreement and market conditions. As

for the concept of “appreciability,” the Italian rules and the EU rules are

identical.7

The Article 2 prohibition is interpreted and enforced in light of

Article 101 of the TFEU and related EU rules.8 Parties should, therefore,

consider the relevant EU rules set forth in Commission Regulation No.

330/2010 of 20 April 2010 on the application of Article 101(3) TFEU to

categories of vertical agreements and concerted practices 9 and the

Commission’s guidelines that supplement that regulation.10 In addition,

3. The AGCM has acquired full jurisdiction over the banking sector only

from 2005. See ICL, art. 20, amended by Law 28 Dec. 2005, n.262, in

Gazz. Uff. 28 Dec. 2005, n.301 and Legislative Decree 29 Dec. 2006, n.

303, in Gazz. Uff. 10 Dec. 2007, n.7

4. See Law 6 Feb. 1996, n. 52, art. 54, in Gazz. Uff. 10 Feb. 1996, n. 34.

5. ICL, supra note 1, art. 2.

6. Id. art. 3.

7. See supra Chapter VI.A.3.a (“The European Union”) for the requirement

that effects on interstate trade must be appreciable and Part D.1 of the

same chapter for the requirement that the restraint of trade must be

“appreciable.”

8. ICL, supra note 1, art. 1, ¶ 4.

9. Commission Regulation 330/2010 of April 20, 2010 on the Application

of Article 101(3) of the Treaty on the Functioning of the European Union

to categories of vertical agreements and concerted practices, 2010 O.J. (L

102) 1.

10. Commission Notice, Guidelines on Vertical Restraints, 2010 O.J. (C 130)

1.