Antitrust Bites - Newsletter

New turnover thresholds for notifying concentrations to ICA

With a communication of 16 March 2026, the ICA has updated the turnover thresholds that, if exceeded, trigger the obligation of prior notification for concentrations to the ICA.

According to the updated thresholds, the obligation to notify the ICA of a concentration transaction is triggered when the following two conditions are cumulatively met:

• the total turnover generated in Italy by all the undertakings involved is more than EUR595 million (previously it was EUR582 million);
• the turnover generated individually in Italy by each of at least two of the undertakings concerned is more than EUR36 million (previously it was EUR35 million).

 

Agreements restricting competition and downstream contracts between third parties: Advocate General Medina clarifies the limits of automatic invalidity under Article 101(2) TFEU

On March 12, 2026, Advocate General (AG) Medina delivered an opinion in the preliminary ruling case C-60/25 concerning the scope of application of Article 101(2) TFEU – which provides for the automatic nullity of agreements contrary to the prohibition on restrictive agreements – and the effects of the Commission’s decisions finding a restrictive agreement on contractual relationships entered into between third parties not involved in the specific prohibited agreement.

The request for a preliminary ruling is rooted in the European Commission’s decisions finding that certain banks involved in establishing the Euribor (i.e., reference interest rate used on international money markets) had participated in a cartel aimed at distorting the pricing components of interest rate derivatives.

In a dispute concerning the validity of a clause indexing interest rates to Euribor, the Court of Appeal of Cagliari requested a clarification on whether the finding that an interest rate benchmark was the subject of a restrictive agreement contrary to Article 101 TFEU, as established by the Commission, could render null and void a clause contained in a loan agreement between a borrower and a bank that was not party to the agreement, which refers to that benchmark during the period of the established infringement.

Preliminarily, the AG notes that the provision on automatic nullity set forth in Article 101(2) TFEU applies exclusively to agreements that fall within the scope of the prohibition established by Article 101 TFEU. 

According to the AG, the rationale behind this approach can be easily explained in light of:

• the need to prevent a cascading effect on contractual relationships concluded by third parties not directly involved in the prohibited agreement;
• the principle that liability for infringements of competition law is personal in nature, meaning that only the undertaking which infringes those rules must answer for that infringement.

Therefore, according to the AG, Article 101(2) TFEU cannot be interpreted as meaning that the manipulation of an interest rate benchmark (as established by a Commission decision) automatically renders void a clause contained in a loan agreement which, although it refers to that benchmark, is not part of the restrictive agreement covered by the Commission’s decision and has not, as such, been found to be contrary to Article 101(1) TFEU.

In any event – the AG points out – the fact that Article 101(2) TFEU does not in itself provide a sufficient legal basis for declaring null and void a clause included in a loan agreement concluded between third parties not involved in the prohibited agreement does not preclude the parties from relying on other legal remedies to assert the invalidity of that clause. The effects that a prohibited agreement within the meaning of Article 101(1) TFEU may have on contractual relationships involving third parties fall to be determined by national courts in accordance with their own law.

 

Golden Power: the Council of State upholds the veto on a proposed partnership in the aerospace industry

On 16 March 2026, Italy’s highest court for administrative matters, the Council of State, ruled on the legality of the exercise of powers by the Prime Minister’s Office under Italy’s foreign direct investment screening legislation, also known as the “golden power” legislation, by vetoing a proposed partnership between Manta Aircraft S.r.l., an Italian start-up in the aerospace industry, and the Chinese company Shenyang Aviation Industry Group Co. Ltd. The project involved establishing a joint venture in China to develop an innovative short-haul civil aircraft with the ability to take off and land vertically and equipped with hybrid propulsion.

The decision was referred to the Council of State after the competent Regional Administrative Court rejected the initial appeal lodged by the Italian start-up.

In dismissing Manta Aircraft’s appeal, the Council of State provided some interesting insights into the national golden power framework.

Firstly, the ruling upholds the applicability of the golden power legislation to "outbound" investments. According to the Council of State, the transfer of an asset owned by an Italian company outside the European Union does not preclude the application of the golden power legislation, which legitimately governs such investments. The Council of State believes that this provision is consistent with EU law. In the absence of binding European legislation on the matter, Member States are free to regulate outbound investments, provided that the principles of fairness and proportionality are observed.

Secondly, the ruling states that the golden power legislation enables the government to evaluate the strategic importance of technology within the military and security sectors even in hypothetical terms. In other words, the mere potential for a technology to be used in the military sector is sufficient for it to fall within the scope of the golden power legislation. The fact that the technology has not yet been developed and is still in the design stage does not preclude such classification.

Based on this reasoning, the Council of State confirmed that the golden power rules applied to the present case. Even the arguments put forward by Manta Aircraft, which highlighted that the company was not yet operational and that the Italian company’s contribution to the proposed joint venture was limited to the know-how and professional expertise of its shareholders, who were directly involved in research and development activities, were not sufficient to overturn this conclusion.

From a procedural point of view, the judgment clarified that the deadline set out in Article 5, paragraph 1, letter d), of Prime Ministerial Decree No. 133/2022, which relates to the duty of the ministry responsible for the preliminary investigation and for the draft decision to submit an explanation of the reasons for exercising the special powers, cannot be regarded as mandatory. This is because the provision, which is of a regulatory nature, does not designate the deadline as such.

Finally, the Court deemed the reasoning put forward by the Prime Minister’s Office to justify the decision to prohibit the transaction - which departed from the Ministry of Defence’s proposal for authorisation subject to conditions drawn up during the preliminary investigation - to be “adequate and reasonable”, based on “the logical consideration that it would be extremely difficult, if not impossible, to enforce any conditions on an activity taking place within the territory of the People’s Republic of China.” 

 

The ICA launches an investigation and a public consultation on the Quantum Computing sector

With its decision of 10 March 2026, the Italian Competition Authority has launched an investigation with public consultation in the quantum computing (QC) sector, in order to examine potential competition concerns, also in light of the dynamics already observed with the spread of AI.

QC is an innovative computing system based on the laws of quantum physics. It is a technology capable of achieving computational power exponentially greater than that of traditional computers. Its applications include areas such as cybersecurity, biotechnology, optimization of production processes, materials design and fintech. The sector is reportedly expanding rapidly, also due to significant investments and high growth expectations.

In this context, the ICA notes that, from an antitrust perspective, the definition of the relevant markets remains uncertain, also due to the interplay between hardware and software components and the ongoing competition to establish reference technological standards.

As regards operators active in the sector, the Authority identifies, on the one hand, specialized companies, sometimes still at the start-up stage, and, on the other hand, so-called hyperscalers. The latter are technology operators (generally attributable to the main players in the high-tech sector) that manage cloud infrastructure and data centers with highly automated architectures distributed on a global scale.

With regard to the characteristics of the sector, the ICA notes that the need for substantial investments in research and development, as well as highly complex physical infrastructure, would point to the existence of significant barriers to entry. This could favour the emergence of a limited number of operators with significant market power, which, in the Authority’s view, could also assume a gatekeeper role.

In this context, hyperscalers are likely to establish themselves as key intermediaries for access to quantum computing capacity. While, on the one hand, this development may facilitate the dissemination of the technology, reducing access costs for users and removing the need to develop proprietary infrastructure, on the other hand clear risks of both technological and contractual lock-in may arise. In particular, a small number of globally active suppliers, leveraging their position in the cloud, may attract very large user bases, both consumers and businesses, with potential effects on market contestability.

Further competition risks, in the ICA’s view, may be inferred from the significant increase in patent filings in the QC sector, potentially indicative of global tech pre-emption strategies capable of negatively affecting market contestability. In addition, there is the possibility of killer acquisitions particularly with regard to QC-focused start-ups which – also in light of their increasing number – represent a particularly relevant area for competition analysis.

Any interested party may participate in the public consultation by submitting observations by 30 April 2026. In particular, the Authority encourages contributions on one or more of the following topics:

• existing and expected market structures (e.g. the distinction and/or interrelation between quantum hardware and software, cloud services and Quantum-as-a-Service, vertical applications);
• existing and expected competitive dynamics (e.g. technological leadership and first-mover advantage, as well as the risks associated with integrating QC as a complementary module within already dominant cloud ecosystems);
• the current and expected role of intellectual property rights;
• observable acquisition and consolidation strategies, with particular reference to the absorption of start-ups, as well as the current and expected role of venture capital in the development of the sector;
• profiles of strategic dependence (e.g. access to critical quantum hardware and services, technological and commercial lock-in and proprietary standards, and effects on security, resilience and technological sovereignty).

The investigation will be concluded by 31 December 2026.

 

The EU Commission adopts a new State aid package in the transport sector

By press release of 16 March 2026, the European Commission announced the adoption of a new package of rules on State aid in the transport sector, which will enter into force on 30 March 2026. These rules are intended to promote the use of more sustainable modes of transport for both passengers and freight. The package consists of:

1. a Block Exemption Regulation in the rail, inland waterways and multimodal transport sectors; and
2. new State aid Land and Multimodal Transport Guidelines, which replace the 2008 Guidelines on State aid for railway undertakings.

In general terms, the Regulation lays down the conditions under which aid granted by Member States is deemed compatible with the internal market and exempt from the notification requirement. This simplification will enable Member States to grant aid more swiftly, reducing administrative burdens and accelerating the implementation of measures supporting sustainability.

The Guidelines, by contrast, set out the conditions – which are less stringent than those provided for in the Regulation – under which the Commission considers aid to be compatible with the internal market, without prejudice to the notification obligation and the Commission’s assessment. Replacing the 2008 Guidelines, the new Guidelines establish a comprehensive framework applicable to all land transport modes that are more sustainable than road transport, including, in addition to rail transport, inland waterways and sustainable multimodal transport.

More specifically, the types of aid falling within the scope of the Regulation and the Guidelines are as follows: (i) aid aimed at reducing the external costs of transport, namely negative externalities such as pollution; (ii) aid for the launch of new commercial connections; (iii) compensation for the performance of public service obligations in the rail freight sector (Guidelines only); (iv) aid for the construction, upgrading and renewal of rail and inland waterway infrastructure, whether unimodal or multimodal; (v) aid for the construction, upgrading and renewal of private rail sidings; (vi) aid for the acquisition of vehicles used for rail or inland waterway transport; (vii) aid for the acquisition of intermodal loading units or onboard cranes (Regulation only); (viii) aid for interoperability; (ix) aid for technical adaptation and modernisation.

As regards the assessment of aid that will remain subject to notification, the Guidelines (whose principles essentially reflect those of the Regulation):

• clarify the possibility of using different operating and investment aid measures;
• introduce more flexible rules for measures that directly contribute to the green and digital transitions, including those aimed at reducing the external costs of transport and promoting interoperability through safer and more efficient operation between national rail systems;
• provide safeguards to support the entry and growth of new operators in sustainable transport markets, facilitating access to financing for SMEs, mid-caps and new entrants, including for the acquisition of rolling stock and inland waterway vessels, while ensuring effective competition conditions.

The Regulation will remain in force until 31 December 2034, while no expiry date is provided for the Guidelines.