Italian Antitrust Authority guidelines on business cooperation agreements

Prepared by Manfredi de Vita, Andrea Lensi Orlandi, Flavia Caltagirone and Silvia Riga

On April 22, the Italian Antitrust Authority (“AGCM” or “Authority”) released a Communication aimed at ruling business cooperation agreements between undertakings in the current COVID-19 outbreak, in light with what already provided for by the Commission at European level (illustrated in more detail within our previous newsalert dated April 16, “Temporary Framework related to business cooperation to tackle COVID-19 outbreak”).

Purpose of the Communication is to (i) anticipate to undertakings those guidelines that, during this period, will be followed in the evaluation of cooperation projects (also by setting priorities for action) and (ii) explain the transitional procedure that Authority will adopt in order to provide guidance on agreements submitted to it.

Having regard to the first topic, the Communication mainly focused on cooperation projects in health-pharmaceutical and agri-food sectors. With reference to these sectoral areas, AGCM endorsed those cooperation activities that may enable trade associations or independent third parties to:

  1. coordinate transportation and distribution of raw materials;
  2. identify drugs, medical devices or foodstuff for which shortage problems may arise; and
  3. provide aggregated (not related to singular undertaking) information on manufacturing and available capacity, in order to assess any gaps in supply.

In the above-mentioned cases, compliance with competition’s principles seems guaranteed.

The Communication also considered cooperation agreements for the reorganisation of production sectors and supply chains (which aim to remedy possible supply or shortages) to be compatible with the antitrust rules on agreements.

Anyhow, the most relevant aspect within the Communication (compared with current the case-law) consists with the acknowledgement that where cooperation initiatives involve disaggregated and sensitive information exchanges, given the exceptional nature of the current situation, AGCM will be able to adopt a greater flexible and tolerant approach when assessing impacts on competition.

As far as vertical agreements are concerned, AGCM deemed it unnecessary to introduce specific derogating provisions, whereas the maximum price fixing is already appropriate to prevent unjustified price increases at distribution level.

Within such framework, following those steps traced out by the European Commission, AGCM opened an e-mail address ( dedicated to undertakings asking for informal information on business cooperation agreements.

The transitional procedure is supplemented by the instrument of comfort letters that, at its own discretion, AGCM may issue where undertakings are requesting for them in order to achieve a higher level of legally binding responses.

In the end, also AGCM urged cooperation agreements aimed at achieving topical and specific purposes. The final purpose is to ensure the supply and availability of essential health care products (and much more) guaranteeing their obtainability on the market as long as the emergency situation lasts. For such reasons, the Communication shall remain applicable until further notice.

Let’s Talk

For a deeper discussion, please contact:

Andrea Lensi Orlandi

PwC TLS Avvocati e Commercialisti


Manfredi de Vita

PwC TLS Avvocati e Commercialisti

Of Counsel

Flavia Caltagirone

PwC TLS Avvocati e Commercialisti