Italian Competition Authority new powers interim measures orders

13 November 2006

Eutimio Monaco

The Italian Competition Authority has made two interim measures orders whilst it investigates potential anti-competitive arrangements involving the Italian Banking Association and pharmaceutical wholesalers respectively.

The Bersani decree, which entered into force in August 2006, introduced several changes to the Italian Competition Act, including confirming the Italian Competition Authority’s ability to order interim measures. It also provides powers for the Italian Competition Authority to implement leniency programs and accept commitments from parties under investigation following the provisions of EC Regulation 1/2003.

The Italian Competition Authority can order interim measures for a specified time in urgent cases where on the basis of a preliminary investigation there is a risk of serious, irreparable damage to competition. If the companies do not comply with the order they are liable for fines of up to 3% of their turnover.

The Italian Competition Authority made its first interim measures order on 14 September 2006 when it required the Italian Banking Association (ABI) to withdraw a circular distributed to its members which set out the application of new rules on unilateral changes to contractual conditions governing current accounts. The Italian Competition Authority considered that the circular provided interpretations of the rules which could result in the coordination of the behaviour of its members rather than simply providing information on the substance of recent changes to the rules. Even though the information in the circular was not binding on members, it was such that it could influence the conduct of individual operators and form a common point of reference which would reduce uncertainty of competitor’s conduct in the market. For example, the guidance in the circular on the new rules on account holders rights to close current accounts without incurring charges, specified that charges could still be applied for the closure of services linked to the current account, for example for the transfer of securities. The Italian Competition Authority found that this could constitute a restraint of competition as it could restrict account holders’ mobility since the current practice by the banks is to link a current account to various other services.

The Italian Competition Authority made its second interim measures order on 27 September 2006 to ensure that seven pharmaceutical distributors supply over the counter (OTC) products to non-pharmacy outlets. The distributors were also ordered to promptly inform the Competition Authority of the steps they had taken to comply.

The Italian Competition Authority had received complaints that pharmaceutical wholesalers had refused to supply, without clear justification, non-prescription medicines to retailers who were not pharmacies. The Italian Competition Authority considered that the behaviour could potentially be the result of anti-competitive arrangements between the wholesalers with the aim of preventing new entry. Pharmacies also had significant shareholdings in these wholesalers. This behaviour was delaying the implementation of liberalisation measures introduced in 2006 to legalise the sale of non-prescription drugs by retailers other than pharmacies.

The Italian Competition Authority considers that non-pharmacy outlets can play a key role in this phase of market liberalisation since currently there is very little retailing of non-prescription medicines through channels other than pharmacies. The Italian Competition Authority has opened an investigation into the arrangements which is due to be completed in September 2007.


Source: Italian competition authority press releases of 18 and 28 September 2006 at http://www.agcm.it/index.htm