Ban on cartels
Under the current rules, restrictions on competition which are necessary to achieve cost reductions or an improvement in supply can be exempted from the ban on cartels. The exchange of information in order to reduce costs and improve supply can equally be exempted. Additionally, the COVID-19 crisis could also lead to increased supply relationships between competitors in order to avoid short-term bottlenecks.
The extent to which restrictions on competition in order to mitigate the effects of the COVID-19 crisis are exempted from the ban on cartels (due to the efficiencies generated) is yet to be decided. This will be carried out independently by each company, if necessary, after obtaining legal advice and/or coordination with the responsible antitrust authorities. In this regard, the Austrian Federal Competition Authority (“FCA”) emphasised its availability for inquiries regarding the interpretation of competition law, in its latest statement.
Furthermore, the ECN has clarified in a joint statement that it will not actively intervene against necessary and temporary measures put in place by companies cooperating in order to avoid a shortage of supply. In the view of the ECN, such measures are unlikely to be problematic under antitrust rules considering the current circumstances as they either do not restrict competition or may be exempt as they generate efficiencies (allowing consumers a fair share of the resulting benefit) that most-likely outweigh any such restrictions on competition. In the view of the FCA, this in particular will apply to temporary measures until 13 April 2020 (i.e. the dated upon which the curfew is currently scheduled to be in place until in Austria).
Classic restrictions on competition, such as price fixing, territorial and customer allocation and agreements to artificially limit supplies will of course remain prohibited. In the current situation, the FCA has highlighted that it will prioritise complaints about health products (such as face masks, sanitising gels, protective clothing, etc.), as of utmost importance to ensure that such products remain available at competitive prices. The ECN has stressed that its members will not hesitate to take action against companies taking advantage of the current situation by cartelising or abusing their dominant position. In this context, the ECN has also emphasised in a joint statement that producers are entitled to set maximum prices to limit unjustified price increases at the distribution level.
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