Merger control regime in Italy after the amendment of the turnover thresholds mechanism: from excessive control to a dangerous "laissez-faire"

The Italian law has deeply amended the turnover thresholds mechanism of the Italian merger filing. Today, if a concentration does not have a European dimension, it requires filing notification duty in Italy when: a) the total threshold achieved by the undertakings concerned in Italy is higher than 468 million euro or b) if the total turnover achieved by the target is higher than 47 million euro in Italy. At the present day, the previous conditions described in points a) and b) are set as alternatives. From the 1st of January 2013, a filing duties will exists in Italy only if all the two thresholds described above will be trespassed. From a statistical analysis of the concentrations filed in Italy in the last 5 years, we foresee a reduction or roughly 93-95% of the transactions that will be filed after the 2013 in Italy.If the new threshold mechanism would have been adopted between the 2005-2011 period, 1/4 of the concentration blocked or authorized with mandatory commitments would not fall in any filing duty obligation. Thus the Italian the merger control will be less intrusive than in the past; with the risk that several transactions potentially able to create or increase a dominant position will not be filed in Italy after 2013. In the article an amendment to the merger control regulation is proposed; Authority must be able (within certain timeframe) to start ex officio an in depth investigation on concentrations which exceed only one of the two thresholds and give rise to antitrust concerns; the parties to a transaction (which need to avoid a risk of a post-closing investigation) must be able to voluntary file before closing.