10

Article 43 of TUSMAR, headed ‘Dominant positions in the [SIC]’, provides: ‘1. Entities active in the [SIC] shall be required to notify [AGCOM] of agreements and concentrations, in order that the latter may verify compliance with the principles set out in paragraphs 7, 8, 9, 10, 11 and …, in accordance with the procedures laid down in the ad hoc regulation adopted by [AGCOM]. … 5. Adapting to changes in market characteristics, … [AGCOM] shall take the measures necessary to eliminate or prevent the formation of the positions referred to in paragraphs 7, 8, 9, 10, 11 … or any other position detrimental to pluralism. … 7. When fully implementing the national plan for the allocation of digital radio and television frequencies, a single content provider may not – including through companies which may be regarded as being controlled by it or affiliated with it within the meaning of paragraphs 13, 14 and 15 of this article – be the holder of authorisations permitting it to broadcast more than 20% of all television programmes or more than 20% of the radio programmes broadcast via terrestrial radio link at national level on the networks provided for at that level. 8. Until the national plan for the allocation of digital television frequencies is implemented in full, the limit set for the total number of programmes per entity shall be 20%, calculated in relation to the total number of television programmes that, including for the purposes of Article 23(1) of legge n. 112 – Norme di principio in materia di assetto del sistema radiotelevisivo e della RAI-Radiotelevisione italiana SpA, nonche’ delega al Governo per l’emanazione del testo unico della radiotelevisione (Law No 112 on regulations and principles governing the set-up of the broadcasting system and RAI-Radiotelevisione italiana SpA, authorising the government to issue a consolidated broadcasting statute) of 3 May 2004 [(Ordinary Supplement to GURI No 104 of 5 May 2004)], are licensed or broadcast at the national level on both analogue and digital terrestrial frequencies. Digitally broadcast television programmes may combine to form the basis for calculation where they cover 50% of the population. In determining whether there is compliance with the 20% limit, no account shall be taken of the programmes which make up the simultaneous retransmission of those broadcast in analogue mode. This calculation criterion shall apply only to entities which digitally broadcast programmes covering 50% of the national population. 9. Without prejudice to the prohibition on creating dominant positions within the individual markets that make up the [SIC], entities which are required to be entered in the Register of Communications Operators established under Article 1(6)(a)(5) of legge n. 249 – Istituzione dell’Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Law No 249 establishing the Communications Regulatory Authority and laying down rules relating to the telecommunications and radiotelevision systems) of 31 July 1997 [(Ordinary Supplement to GURI No 177 of 31 July 1997)] may neither directly, nor through controlled or affiliated companies within the meaning of paragraphs 14 and 15, earn revenue exceeding 20% of the total revenues in the [SIC]. 10. The revenues referred to in paragraph 9 are those received from public service broadcasting funding, after deduction of the duties payable to the Treasury, from national and local advertising, including in direct form, from teleshopping, from sponsorship, from product dissemination activities at points of sale, with the exception of discounts on prices, from continuous agreements concluded with public entities and from public aid granted directly to the entities carrying on the activities referred to in Article 2(1)(s), from pay-television offers, from subscriptions and sales of newspapers and periodicals, including in direct form, from television products, including printed and audio products marketed in annex, from press agencies operating on a national scale, from electronic publication and publication of directories, including on the internet, from advertising online and on various platforms, whether or not direct, including resources obtained by search engines and social and sharing platforms, and from the use of cinematographic works in various forms accessible to the public. 11. Undertakings the revenue of which in the electronic communications sector as defined in Article 18 of decreto legislativo n. 259 – Codice delle comunicazioni elettroniche (Legislative Decree No 259 establishing the Electronic Communications Code) of 1 August 2003 [(Ordinary Supplement to GURI No 214 of 15 September 2003)], including that of subsidiaries or affiliates, exceeds 40% of the total revenues in that sector, may not earn, within the [SIC], revenue exceeding 10% of the total revenues generated in that system. … 13. For the purposes of determining dominant positions prohibited under this consolidated text in the [SIC], account shall also be taken of shares acquired or, in any event, held by subsidiaries, even indirectly, by fiduciary companies, or through intermediaries. Shareholdings are considered to be acquired when their ownership passes from one entity to another as a result of or in connection with a merger, division, assignment, company transfer or similar transaction concerning those entities. Where there are agreements, of any kind, between the various shareholders concerning the concerted exercise of voting rights or, in any event, the management of the company concerned, distinct from mere mutual consultation between the shareholders, each shareholder shall be deemed to hold all the stocks or shares owned or controlled by the parties involved. 14. For the purposes of the present Consolidated Law, there is control, in particular with regard to entities other than companies, in the cases provided for in the first and second paragraphs of Article 2359 of the Codice civile (Civil Code). 15. Control is considered to exist in the form of the exercise of a dominant influence, in the absence of evidence to the contrary, in any of the following situations: (a) where there is an entity which, alone or in conjunction with other shareholders, is able to exercise a majority of the votes in ordinary shareholders’ meetings or to appoint or revoke the majority of directors; (b) where there are, in particular between the members, financial, organisational or economic links capable of producing any of the following effects: (1) profit and loss transfer; (2) coordination of the management of an undertaking with that of other undertakings, with a view to pursuing a common objective; (3) conferral of powers exceeding those inherent in the stocks or shares held; (4) conferral of powers, as regards the selection of directors and managers of undertakings, on entities other than those so entitled on the basis of the ownership structure; (c) where there is a relationship of subordination to common management, which may, inter alia, result from the compositional characteristics of the administrative bodies or from other significant qualitative factors. …’