Antitrust Bites – Newsletter

New turnover thresholds for notifying concentrations to ICA

With a communication of 24 March 2025, the ICA has updated the turnover thresholds that, if exceeded, trigger the obligation of prior notification for concentrations to the ICA.

According to the updated thresholds, the obligation to notify the ICA of a concentration transaction is triggered when the following two conditions are cumulatively met:

• the total turnover generated in Italy by all the undertakings involved is more than EUR582 million (previously it was EUR567 million);
• the turnover generated individually in Italy by each of at least two of the undertakings concerned is more than EUR35 million (unchanged).

 

ICA adopts new guidelines on criteria for quantifying sanctions and communication on the non-imposition and reduction of sanctions

On 10 March 2025, the ICA published the new Guidelines on the criteria for quantifying sanctions and the new Communication on the non-imposition and reduction of sanctions, pursuant to Articles 15 and 15-bis of Law 287/90, respectively. The guidelines and the communication replace the previous texts from 2014 and 2013.

The purpose of the guidelines is to illustrate the principles that the ICA will apply to quantify sanctions for violating prohibitions regarding agreements that restrict competition and abuse of dominant position. The guidelines should guarantee the transparency and predictability of its decision-making process.

The main changes introduced by the new guidelines, compared to the previous version, concern the determination of the basic amount of the sanction with reference to infringements committed by associations of undertakings and in the context of public tender procedures. They also address the impact of aggravating and mitigating circumstances on the amount of the sanction.

In terms of determining the basic amount of the sanction, the guidelines confirm the general rule that the amount is obtained by multiplying a percentage of the value of sales, determined on the basis of the seriousness of the infringement and by the duration of the company's participation in the infringement.

With reference to associations of undertakings, given that the value of sales corresponds to the sum of the sales made by the members of the association, the ICA has clarified that when the sanction is imposed on both the association and its members, the turnover of the latter isn’t considered when calculating the association's sanction.

As for cases of collusion in public tenders, the ICA has specified that if the tender is awarded to parties external to the restrictive agreement, the value of sales corresponds to the offer presented by the participant who should have won the tender according to the plan. That is unless this value isn’t reliable or sufficiently representative, in which case the ICA will use other pertinent information.

As known, the basic amount of the sanction can be increased or reduced if there are any aggravating or mitigating circumstances. The new guidelines address the impact of these circumstances on the final sanction. They establish that, as a rule, the impact of each of the circumstances considered by the ICA won’t exceed 10% of the basic amount, up to an overall percentage equal to 30% of the basic amount, whether increased or decreased. The previous guidelines quantified these amounts as 15% and 50%, respectively.

The new guidelines also deal with other aspects for determining the sanction, essentially confirming the rules already in place. These are the provisions regarding (i) other adjustments that can be made by the ICA to guarantee the proportionality and effective deterrence of the sanction; (ii) the concurrence of several offences (in particular, if the same conduct leads to several violations, the sanction envisaged for the most serious violation will be applied to the company, increased up to threefold, while where the company commits multiple violations through multiple behaviours, as many sanctions will be applied as there are violations ascertained); (iii) the maximum penalty (the general rule is that when the final amount of the sanction exceeds the maximum penalty, it’s reduced by the amount exceeding this limit); (iv) the company's ability to pay, which, under certain conditions, the ICA can take into consideration to reduce the penalty; (v) the imposition of a joint penalty, which takes place when the infringement involves more than one company belonging to the same group; (vi) penalties of a symbolic amount, which can be applied under specific circumstances.

The sanction might not be applied or might be reduced in accordance with the conditions set out in the new communication on the non-imposition and reduction of sanctions pursuant to art. 15-bis, paragraph 1, of Law 287/1990.

This communication, like the previous one in 2013, identifies the characteristics of the favourable treatment programme for companies that collaborate with the ICA in revealing secret cartels. It introduces some new features with reference to both the requirements for participation in the programme and the procedures for submitting and evaluating applications to join the programme itself.

As known, the ICA might not apply the sanction to the company that first reveals its participation in a secret cartel or provides sufficient evidence to ascertain an infringement. The new communication makes it clear that in both cases, granting immunity is subject to the condition that the ICA doesn’t already have sufficient evidence to carry out the inspection or challenge the infringement.

It’s now expressly stated that, as provided for in art. 15-bis, paragraph. 4, Law 287/1990, immunity cannot be granted to a company that has coerced others. A reduction of the sanction can be granted if the conditions are met.

In terms of penalty reductions, a new development concerns the introduction of specific brackets to determine the amounts by which penalties can be reduced, based on the order requests for penalty reductions are received. The new communication states that the company can obtain a reduction of the penalty that cannot exceed 50% of the penalty that would have been imposed without the benefit of the favourable treatment. It will be quantified as: (i) between 30% and 50% for the first company to submit the application; (ii) between 20% and 30% for the second company; (iii) no more than 20% for other companies.

It is confirmed that, to benefit from the favourable treatment, the company has to cease its participation in the cartel and cooperate genuinely and continuously with the ICA, without revealing its participation in the programme or destroying, falsifying or hiding evidence. The benefit is not forfeited if the company demonstrates that the destruction, falsification or concealment of evidence couldn’t be avoided.

As already mentioned, the communication also addresses how requests can be submitted to participate in the programme. They can be submitted either in written or oral form to the ICA, which evaluates them according to the order of arrival and decides whether to accept them based on compliance with the requirements, communicating if the conditions for favourable treatment have been met.

While the guidelines apply to ongoing proceedings, in which the parties have not yet been notified of the communication of the preliminary findings, the communication will apply to proceedings initiated after its publication.

 

ICA publishes new guidelines on antitrust compliance

On 10 March, the Italian Competition Authority (ICA) published the new antitrust compliance guidelines, replacing the previous version from 2018. The new guidelines will apply to proceedings initiated by the Authority after their publication.

The guidelines provide information on how to develop and implement antitrust compliance programmes and their content. They also include the criteria for evaluating the programmes for the purpose of recognising the corresponding mitigation in the event of the imposition of sanctions for antitrust violations.

Like the previous version, the guidelines clarify that an antitrust compliance programme must be designed and implemented considering the characteristics of the company. These include the nature of the goods and services offered, the company’s organisation, and its position and size in the market, and the competitive context in which it operates.

The programme should include: (i) the identification and assessment of the company’s specific antitrust risks, (ii) the implementation of training and know-how activities, (iii) the definition of management processes suitable for reducing the risk of conduct in violation of antitrust regulations, (iv) an appropriate system of disciplinary measures and incentives, (v) periodic monitoring and updating of the programme.

Regarding the recognition of the mitigation applicable for adopting a compliance programme, the new guidelines adopt a stricter approach compared to the previous version.

• The maximum mitigation has been reduced from 15% to 10% for effective programmes that allowed for the timely discovery of violations and their interruption before the notification of the investigation’s initiation. In cases where the leniency procedure applies, such mitigation may only be granted if a corresponding leniency application is submitted.
• The maximum mitigation has been reduced from 10% to 5% for programmes that aren’t manifestly inadequate, adopted before the notification of the investigation’s initiation, provided that the company adequately integrates the programme and starts its implementation within six months of the opening of the investigation.
• No mitigation (previously up to 5%) is foreseen for programmes adopted after the notification of the investigation’s initiation, for programmes deemed manifestly inadequate that are integrated after the notification of the investigation’s initiation, and for programmes adopted by repeat offenders.

To recognise the mitigation within the scope of an investigation, the company has to submit a specific request accompanied by an explanatory report. This report must demonstrate the adequacy of the compliance programme in preventing potential antitrust violations, highlighting the reasons that attest to its effectiveness and describing the concrete actions the company has taken to ensure its effective and efficient implementation.

 

Abuse of dominant position for refusing interoperability of digital platforms: EU Court of Justice ruling

In a ruling dated 25 February 2025, the EU Court of Justice ruled on a preliminary reference made by the Council of State regarding the interpretation of Article 102 TFEU. The ruling was related to an abuse involving a dominant company refusing to ensure the interoperability of its digital platform with an application developed by a third company.

The reference for a preliminary ruling originated from the appeal against the Lazio Regional Administrative Court's ruling that had upheld a 2021 decision in which the ICA had fined Google more than EUR100 million for abuse of a dominant position. In its ruling, the ICA had found Google violated Article 102 TFEU because it had refused to ensure the interoperability of an application for a company operating in the electric mobility sector. The company requested the interoperability of its electric vehicle charging application with Android Auto, a platform for integrating mobile applications into vehicle infotainment systems launched by Google in 2015.

Ruling on the preliminary questions submitted by the Council of State, the court clarified that a dominant undertaking refusing to ensure the interoperability of a digital platform with an application of a third-party undertaking may constitute an abuse of a dominant position. That is even if the platform itself isn’t indispensable for the commercial operation of the application on a downstream market. The key point is that the application was developed not solely for the needs of its own business but with a view to enabling its use by third-party undertakings.

The court specified that this refusal may still constitute an abuse if the platform is “such as to make that app more attractive to consumers.”

This interpretation appears to depart from the more restrictive conditions defined in the Bronner judgment. According to the judgment, a refusal to allow access to an infrastructure developed and held by a dominant undertaking for the needs of its own business may constitute an abuse of a dominant position if refusal is likely to eliminate all competition in the market in question on the part of the entity requesting access (and cannot be objectively justified); and if the infrastructure, in itself, is indispensable to carrying on that undertaking's business, inasmuch as there is no actual or potential substitute for the infrastructure itself.

The court clarified that maintaining or developing competition in the downstream market by the requesting third company doesn’t automatically exclude the anticompetitive nature of the challenged conduct. So, denying interoperability may have anticompetitive effects even if it doesn’t have an immediate impact on the market structure.

Finally, the court recognized that the dominant undertaking may invoke objective justifications for refusing interoperability, such as protecting the technical integrity of the platform, the security of its use, or other technical reasons that make the required interoperability impossible. Where these justifications aren’t objectively grounded, the dominant undertaking has to grant the requested access.

The court’s interpretation suggests that, in the context of digital platforms, the concept of abuse of a dominant position must be assessed with a more flexible approach than the traditional criteria. The court’s conclusions appear to be directed toward a shift from a rigid view based on the indispensability of access, like in Bronner, to a more dynamic, market-oriented perspective that takes into account the specificities of digital platforms and their impact on competition and consumer welfare.

 

European Commission launches public consultation on antitrust rules for motor vehicle sector

The European Commission has launched a public consultation for the review of the competition rules applicable to vertical agreements in the motor vehicle sector.

Vertical agreements are agreements between two or more companies operating at different levels of the production or distribution chain and relating to the conditions under which the parties can purchase, sell or resell certain goods or services.

The public consultation concerns Regulation EU No 461/2010 (MVBER). The regulation sets out the conditions under which agreements for repairing and distributing spare parts for motor vehicles are exempted from the application of Article 101 TFEU and the Supplementary Guidelines, both amended in April 2023. Additionally, the consultation concerns Regulation EU No 720/2022 (VBER), on vertical agreements, and the related Guidelines on vertical restrains, as far as they apply to the automotive sector.

The aim of the consultation is to gather information on the main issues in competition law concerning vertical relationships in the market for distributing motor vehicles and in the motor vehicle aftermarkets. Among the issues are the growing importance of data and the impact it has on independent operators’ ability to compete effectively with authorized repairers and the increasing use of agency agreements for distributing motor vehicles.

The revision of the competition rules on vertical relationships, initiated with the public consultation at hand, is part of the initiatives undertaken by the European Commission within the Strategic Dialogue on the Future of the Automotive Industry, launched on 30 January 2025. The aim of these initiatives is to adopt an Action Plan that will address issues relevant for the automotive sector, such as ensuring technological innovation and establishing a predictable regulatory framework. In particular, the revision of MVBER and of the Supplementary Guidelines aim to ensure a competitive automotive aftermarket.

All interested parties can submit comments by 23 May 2025.

 

European Commission launches public consultation on the draft state aid framework supporting the Clean Industrial Deal

On 11 March 2025, the European Commission launched a public consultation on the draft state aid framework accompanying the Communication “Clean Industrial Deal: A joint roadmap for competitiveness and decarbonization,” published on 26 February 2025.

The Clean Industrial Deal is a business plan that outlines the actions the Commission will take to reduce energy costs, increase demand and production of clean tech, finance the clean transition and foster the circular economy. Among these actions, the Commission included the adoption of a new state aid framework that will allow for simplified and quicker approval of state aid measures for rolling out renewable energy, deploying industrial decarbonization and ensuring sufficient manufacturing capacity of clean tech.

The Commission launched the public consultation on the draft state aid framework, the adoption of which is planned for June 2025. The draft framework sets out the conditions under which state aid for certain investments and objectives would be considered compatible with the internal market. The aim of the draft is to promote the simplification of state aid rules for projects that contribute to accelerating the Clean Industrial Deal objectives.

More specifically, the draft framework contains provisions for the following types of aid measures: (i) measures accelerating the rollout of renewable energy; (ii) measures facilitating industrial decarbonization; (iii) measures ensuring sufficient manufacturing capacity in clean technologies; (iv) measures to reduce the risks associated with private investments in renewable energy, industrial decarbonization, manufacturing capacity in clean technologies and certain energy infrastructure.

Interested parties can respond to the consultation until 25 April 2025.