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Abstract:
This article deals with the decisional practice on banking mergers the Italian Competition Authority (AGCM) has developed since 2006 when it was given full jurisdiction over banking. More precisely, the article focuses on the noteworthy aspects of the AGCM practice that are believed to be the narrow definition of retail banking markets, a 30% market share threshold to identify the mergers presumed to lead to dominance and a pro-active regulation of anticompetitive interlocking directorates. From these aspects it can inferred that the AGCM has taken a strict approach in vetting banking mergers. The article also dwells on the appraisal of rescue banking mergers. Arguably, these merger fall within Article 20(5 bis) of the Italian Competition Act that codifies a failing firm defence, by giving the Bank of Italy the power to clear an anticompetitive mergers on stability grounds. The banking regulator should invoke Article 20(5 bis) only in exceptional cases meeting a systemic standard, which occurs when a merger is necessary to preserve financial stability. This position is consistent with the thinking of the European Commission, which opposes to relax competition law enforcement at harsh economic times.

competition law, merger control, definition of relevant markets, interlocking directorates, failing firm defence

Abstract:
This paper carries out a comparative analysis of the regulatory framework for leveraged buy-out operations (LBO) under the English Company Act and the Italian Civil Code. The 2003 Act has made and the 2006 Company Law Reform will make significant amendments to Italian and English company laws governing LBOs, respectively. On the one hand, the 2003 Act has codified the principle that LBOs are not prohibited per se by the Civil Code provision governing the giving of financial assistance. On the other hand, the 2006 Company Law Reform is expected to introduce a different regime for financial assistance depending on whether public companies are involved or not with the transaction. Transactions between public companies and private-to-public companies transactions will be still subjected to an outright ban on financial assistance, while the provision of financial assistance in connection with transaction between private companies will be liberalized. First, the article gives a short account of the quite strict regime for LBOs under the original text of the Civil Code and the 1985 Company Act. Then, it focuses on the novelties of the regulation of LBOs that have been recently introduced into the Italian legal system or will be shortly introduced into the English legal system. It may be interesting to compare the approaches taken by the English and Italian lawmakers for the regulation of LBOs and to evaluate whether there exist any similarities.

Italian company law, English company law, LBOs, financial assistance