Content developed with the assistance of AI tools and reviewed by the author.
What US counsel must know before closing an Italian acquisition under the new mandatory digital notification regime
Your HSR experience does not travel to Italy. An attorney who has filed hundreds of Hart-Scott-Rodino pre-merger notifications arrives at the Italian transaction assuming the mechanics are similar: gather the financials, submit the form, wait for clearance. The Italian system looks familiar enough on paper — mandatory notification, a review period, a clearance decision. But the operational assumptions beneath that surface are different in ways that matter for deal timelines, closing risk, and post-closing liability. The September 2026 switch to a mandatory online platform is the most immediate change. The AGCM's willingness to call in deals that never met the filing thresholds is the most underestimated one.
A notification to the Autorità Garante della Concorrenza e del Mercato (AGCM), Italy's independent competition regulator, is mandatory when two cumulative conditions are satisfied: the combined Italian turnover of all transaction parties exceeds €595 million, and the Italian turnover of each of at least two parties individually exceeds €36 million. Both thresholds are measured by Italian-sourced revenue alone, not worldwide figures. The AGCM updated both figures with effect from 16 March 2026 pursuant to the periodic adjustment mechanism in Article 16(1) of Law No. 287 of 10 October 1990 (Legge 287/1990), Italy's primary antitrust statute.
For a US acquirer, the Italian-revenue limb is the one that matters most. A large US strategic buyer whose target has, say, €40 million of Italian turnover must verify whether the target's Italian revenue individually clears the €36 million floor and whether the combined group clears €595 million — not whether the deal would trigger HSR thresholds in the United States.
Unlike the HSR Act, which imposes a mandatory waiting period before closing regardless of competitive impact, Italy operates what practitioners sometimes describe as a suspensory-light regime. The parties are not legally prohibited from closing before AGCM clearance. However, closing without clearance carries real risk. If the AGCM subsequently determines the transaction raises competition concerns, it may impose remedies, require structural divestitures, or — in serious cases — order unwinding of the transaction. The AGCM's Phase I review runs 30 calendar days from the date the filing is deemed complete. If the authority needs more information, it may open a Phase II investigation, which adds up to 45 days. Phase II decisions can extend further where commitments are negotiated.
The practical effect is that most notifiable deals in Italy are closed only after clearance, even though Italian law does not impose a formal suspensory obligation equivalent to the HSR waiting period. Closing before clearance shifts all the remedial risk to the buyer. Italian counsel and experienced US transaction attorneys routinely include an antitrust condition precedent in the sale and purchase agreement covering AGCM clearance or expiry of the Phase I period without intervention. Counsel should draft that condition with care: a poorly worded antitrust CP that references only "clearance" without accounting for the expiry-of-period route has caused disputes over whether closing is permitted.
From 1 September 2026, all AGCM merger notifications must be submitted exclusively through the authority's dedicated online portal. Paper filings, certified email (PEC) submissions, and hybrid document packages are no longer accepted. The procedural consequence is strict: the 30-day Phase I clock runs only from the date the AGCM deems the filing complete. An incomplete submission resets the clock entirely; it does not pause it.
This is the procedural gap that competitor briefings miss. US attorneys accustomed to HSR's paper-filed system (or, more recently, the FTC's e-filing platform with its own formatting requirements) may treat digital submission as a formality. It is not. The AGCM's portal validates completeness at intake, and if the submission is rejected or returned for correction, the review period has not started. In a transaction with a fixed long-stop date, a two-week delay caused by a document formatting error can push closing past the deadline. That is not a theoretical concern: the AGCM's online system requires structured data entry, specific file formats, and certified digital signatures where applicable under Italian administrative rules.
The practical recommendation is to test the portal well before submission, confirm with AGCM staff (the authority does accept pre-notification contacts) which specific documents are required for the deal structure at hand, and build at least two weeks of filing buffer into the transaction timeline ahead of the long-stop date.
Yes — and this is the risk that US counsel most consistently underestimates. Article 16(1-bis) of Law 287/1990 empowers the AGCM to call in a below-threshold transaction within six months of its completion, provided at least one threshold condition is met (either the combined Italian turnover or the individual Italian turnover requirement) or the worldwide turnover of all parties exceeds €5 billion, and the authority has identified concrete competition concerns.
The AGCM has publicly confirmed it treats this call-in power as an active enforcement tool, particularly in digital markets, healthcare consolidation, and insurance sector roll-ups — industries where individual Italian revenues may fall below the filing thresholds but where incremental acquisitions can aggregate market power. A US strategic buyer in healthcare technology executing a buy-and-build strategy in Italy through a series of smaller transactions, each below the €36 million individual-threshold floor, should treat Article 16(1-bis) as a live risk and conduct a competition assessment before each closing, not only when the headline numbers trigger mandatory notification.
The maxim vigilantibus non dormientibus iura subveniunt — the law assists those who are watchful, not those who sleep — captures the practical obligation here. Post-closing discovery of a call-in investigation is significantly more disruptive than pre-closing voluntary assessment.
As the legal scholar Lon Fuller observed in The Morality of Law, the legitimacy of a legal system depends not only on its rules but on their clarity and accessibility — a standard the AGCM's published guidance and updated threshold notices largely meet, provided advisers read them before, not after, signing.
Phase I runs 30 calendar days from a complete filing. In the AGCM's published statistics, the substantial majority of notified mergers clear in Phase I, typically in 20 to 28 days for straightforward horizontal transactions with limited Italian market overlap. Phase II, which is opened by a formal resolution of the authority, adds up to 45 days. Where the parties submit commitments — structural or behavioural — the Phase II clock is paused and then resumed, meaning a commitment-heavy review can extend to 90 days or more from initial filing.
Unlike US second-request practice under the HSR Act, Italy has no formal second-request equivalent. The AGCM can request additional information during Phase I and Phase II, and each such request temporarily suspends the review clock. That suspension is the Italian analogue to the HSR second request for planning purposes: build it into the timeline rather than treating the 30-day period as a guaranteed minimum.
For deals with no Italian horizontal overlap and purely conglomerate or vertical effects, AGCM Phase I clearance in under three weeks has been consistently achievable. For deals involving significant Italian market shares — above 25% in any relevant market — a Phase II opening is materially more likely, and deal teams should model a 90-day outer timeline.
In our experience advising on inbound acquisitions, the most common filing error is not a threshold calculation mistake. It is a mismatch between the deal structure at signing and the documents uploaded to the AGCM portal. When a transaction amends its structure between signing and the intended filing date — an earn-out added late, a minority stake carved out, a subsidiary excluded — the filing package prepared in advance no longer accurately reflects the notifiable concentration. The AGCM returns the filing as incomplete, and the Phase I clock has not started. By the time a corrected package is assembled, two weeks have elapsed. Prepare the filing package after the final agreed structure is locked, not before.
Does the AGCM filing obligation apply to a US company with no Italian subsidiary?
Yes. The obligation is triggered by the Italian turnover of the target, not by the acquirer's corporate presence in Italy. A US company with no Italian legal entity that acquires an Italian business generating more than €36 million in Italian revenues must file with the AGCM if the combined-threshold condition is also met. Italian-sourced revenue of the target is the relevant measure, regardless of where the acquirer is incorporated or registered.
What happens if we close without filing and the thresholds were met?
The AGCM may impose a fine of up to 1% of the worldwide turnover of each party for failure to notify a notifiable transaction. More significantly, the authority may open a Phase II investigation after closing and, if it finds the transaction substantially lessens competition, order remedies including divestiture. Italy has exercised this power, and the AGCM has not treated good-faith oversight as a complete defence. The cost of a post-closing investigation — in management time, legal fees, and deal uncertainty — typically far exceeds the cost of pre-closing notification.
Can we submit the AGCM filing ourselves, or do we need Italian counsel?
The AGCM portal requires filings to be submitted by an identified representative and, for certain document categories, Italian-language certified translations. The authority's procedural forms are available in Italian only. US counsel can lead the substantive competition analysis, but the procedural submission requires either Italian counsel or an Italian-qualified representative with access to the portal and familiarity with the authority's document requirements. Attempting to submit without local support from 1 September 2026 carries material risk of an incomplete filing and a delayed Phase I start.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
