On April 22, 2020, the Italian Competition Authority (the “ICA”) issued a notice (the “Notice”) providing guidelines on the assessment of cooperation agreements in the context of the Covid-19 emergency.[1]

The Notice follows similar initiatives of other EU competition authorities, including the temporary framework issued by the EU Commission on April 8, 2020, for assessing business cooperation in response to situations of urgency stemming from the current Covid-19 outbreak.[2] The Commission’s temporary framework was preceded by the publication of a Joint Statement by the European Competition Network (ECN) on March 23, 2020.[3]

The Notice focuses on cooperation agreements aimed at favoring the production and fair distribution of essential services and goods that may be subject to shortages due to a sudden rise in their demand linked to the ongoing Covid-19 crisis (e.g. in the health and agri-food sectors). In this respect, the ICA acknowledges that it may be necessary to reorganize an industry with a view to increasing and optimizing the production of certain essential products. While these initiatives inevitably require the exchange of strategic and disaggregated information that “in ‘normal’ times would clearly raise competition issues”, the ICA is willing to assess such initiatives with a greater degree of flexibility, provided that they are: (i) necessary to facilitate the production of essential services and goods (such as drugs or medical devices needed to fight Covid-19); (ii) only applied for the time strictly necessary; and (iii) absolutely proportionate. In addition, the Notice stresses the possibility for companies, in the context of vertical agreements, to set maximum resale prices for their products, which may be useful to limit unjustified price increases at the distribution level.

The Notice also clarifies that the ICA is available to assist companies and trade associations in the self-assessment of the above-mentioned cooperation projects, through a dedicated email address. Lastly, the ICA clarifies that, in exceptional circumstances and at its own discretion, it can issue comfort letters on the compliance of certain cooperation projects with competition law, with a view to increasing legal certainty.

In any event, the Notice stresses that the ICA will not tolerate any conduct, whether a cartel or abuse of dominant position, which seeks to leverage on this exceptional situation and to misuse the rules in the Notice.

[1]      ICA, Communication of April 22, 2020 – Notice on cooperation agreements between businesses within the framework of the coronavirus emergency. The Notice has been effective since April 24, 2020.

[2]      European Commission, Communication of April 8, 2020 – Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak.

[3]      European Competition Network, March 23, 2020 – Antitrust: Joint statement by the European Competition Network (ECN) on application of competition law during the Corona crisis.