Antitrust rules still in force: some exceptions?
In the current coronavirus crisis, companies and businesses must be aware of the fact that, in principle, antitrust law provisions remain fully in force. Nevertheless, on 23 March 2020, the European Competition Network (“ECN”), which encompasses the national competition authorities of the EU Member States and the European Commission, issued a joint statement in which it acknowledged “that this extraordinary situation may trigger the need for companies to cooperate in order to ensure the supply and fair distribution of scarce products to all consumers”. In addition, the ECN guaranteed that the competition authorities are not going to intervene against necessary and temporary measures adopted to tackle a shortage of supply during the crisis.
In this sense, although companies should continue to fiercely compete and bearing in mind that antitrust rules still apply in times of crisis, the ECN admits that some flexibility of competition rules could be accepted, in particular, in relation to measures aimed at avoiding shortages of supply.
In addition, countries like Norway, in the field of transport, and the United Kingdom, concerning supermarkets, are open to allow cooperation between companies during the pandemic and are introducing amendments to current antitrust regimes. In the United Kingdom, the competition authority has even issued guidance that sets out the criteria for the possible exemptions of anti-competitive practices in general.
In Spain, the Competition Authority (“CNMC”) has expressly stated that it endorses the content of the ECN joint statement and, therefore, it can be assumed that it will also take a more flexible approach. In any event, on 12 March 2020, the CNMC issued a Communication indicating that it would reinforce the vigilance of potential restrictive practices which might affect products intended to protect public health.
Finally, certain rules adopted by the Spanish Government (in particular, Royal Decree 463/2020 of 14 March 2020) affect the deadlines of infringement and merger control proceedings currently initiated before the CNMC and the regional competition authorities (the latter only in relation to infringement proceedings).
In the context of the current crisis, it is essential that companies remain well informed of the risks and opportunities they may encounter from an antitrust law perspective. In the following sections, please find a summary of the main ones, focusing on different areas:
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