On 22 December 2020, the Italian Competition Authority (“ICA”) cleared the incumbent postal firm Poste Italiane’s (“PI”) acquisition of the sole control over its main rival Nexive Group (“Nexive”). The ICA did not apply the usual merger control rules in this case, but rather cleared the transaction under Article 75 of Decree No. 104 of 14 August 2020 (measures enacted in light of the COVID-19 pandemic).
According to this new, temporary legal provision, certain transactions could be cleared in derogation of Italian merger control rules, provided that they are notified to the ICA and subject to the ICA’s approval of behavioural remedies. Specifically, this exceptional rule applies to mergers: (i) not having an EU dimension and (ii) involving undertakings that are either active in labour-intensive markets or provide services of general economic interest (“SGEIs”), provided that those undertakings have registered losses during the past three years and may stop their activities “also as a result of” the COVID-19 pandemic.
The ICA considered that all these conditions were satisfied in this postal transaction. In particular, the ICA noted that the postal sector is both labour intensive (as the labour costs account for more than 50% of total costs) and qualifies as an SGEI under Italian law. In relation to the third condition, the parties submitted that the notified transaction could be considered as a rescue merger under the failing firm defence doctrine.
The ICA concluded that, the acquisition could result in PI holding a monopoly position on several relevant markets. Nevertheless, in application of the special provision, the ICA accepted a number of behavioural commitments aimed at eliminating the risk of PI imposing higher prices or more unfavourable conditions on consumers. Specifically, PI was obliged to update its antitrust compliance programme and to grant competitors effective access to its network relating to the relevant markets.
