In the midst of the COVID-19 pandemic, not a single day passes without the news on shortages of medicines or medical equipment.  The issue of ‘shortages of essential products and services’ is not specific to the UK, Italy or Spain.  At these challenging times, the shortages are occurring on a daily basis on a global scale.  Here in Europe, the European Commission (Commission) has published a Temporary Framework Communication, dated 8 April 2020 (C(2020) 3200 final), which sets out forms of cooperation among companies, such as in the health sector, which may be allowed in order to tackle and to avoid “shortages of essential products and services resulting first and foremost from the rapid and exponential growth of demand” (such as in medical supplies needed to treat COVID-19 patients).
Continue Reading COVID-19 and Cooperation Among Companies in the Health Sector

At the beginning of April 2020, the Court of Justice of the EU (CJEU) handed down a preliminary ruling in Case C-228/18, Gazdasági Versenyhivatal v Budapest Bank Nyrt. and others and thus clarifying and reinstating certain aspects of the “by object” assessment. As a reminder, it is a well-established EU competition law principle that if a restriction is considered to be anticompetitive by object, the competition authorities are not required to examine its effects. For example, price fixing, input restrictions, bid-rigging, collective agreements to boycott, resale price maintenance are considered to have negative effects, in particular, on the price, quantity, or quality of goods or services, that they can be regarded as falling within Article 101(1) of the Treaty on Functioning of the EU (TFEU)  without the need to demonstrate any actual or likely anti-competitive effects on the market.
Continue Reading The Court of Justice of the EU Gives a Preliminary Ruling Clarifying and Reinstating Certain Aspects of the “by Object” Assessment

At the EU level, Commission staff have adapted to working from home but are aware of the challenges in dealing with tight timeframes presented by merger notifications (including securing meaningful input from industry participants which may be affected by a transaction).  The Commission has therefore issued an appeal to request parties to delay merger filings as much as possible.  Other authorities have indicated that review timeframes may be extended.
Continue Reading Changes to Merger Rules

In these extraordinary times, economies around the World including Member States are pumping money into their economies.  Businesses and whole sectors are crying out for special support.  State support in the EEA above a low de minimis threshold is subject to strict state aid rules which requires pre-clearance by the European Commission under strict conditions. 

It is important to remember that as businesses struggle in these times to cope with issues like distribution, sourcing ingredients, components and other resources, they may look to collaborate with rivals.   In fact, many businesses have been doing exactly that.  Collaboration between competitors can be perfectly benign and may no anti-competitive effects (for example, in setting standards, lobbying efforts).  However, competition rules do apply and coordination of prices, market sharing, cost allocation, coordinated output reductions or sharing competitive sensitive information, would be prohibited.  Some restrictions are regarded as ‘hard core’ and rarely worthy of exemption (price fixing, customer and market allocations and quantity restrictions).  Penalties for infringement could lead to significant fines and possible private damages litigation.
Continue Reading Collaboration Between Competitors in Times of Crisis

Perhaps the first authority to warn about the perceived risks, the UK’s CMA issued a warning on 6rh March 2020 to traders about taking advantage of the COVID-19 pandemic.  CMA chief executive Andrea Coscelli said: “We urge retailers to behave responsibly throughout the coronavirus outbreak and not to make misleading claims or charge vastly inflated prices. We also remind members of the public that these obligations may apply to them too if they resell goods, for example on online marketplaces.”  This warning was triggered by the rising cost of hand sanitisers.  The CMA went on to warn that it would take enforcement action against those suspected of such conduct and, if necessary, would also consider requesting the Government to introduce price controls.  It has created a taskforce to monitor market behaviour during the crisis.  Details about the Taskforce, its mandate and how to lodge complaints can be found here.
Continue Reading Measures to Protect Against Predatory Conduct

In recent months we have seen a number of horizontal mergers being scrutinized under national and EU merger rules. Since the fall-out from the Siemens/Alstom merger refusal, we have also seen a number of ministers from member states, including Poland, France and Germany, call for increased tolerance and indeed support for the emergence of so-called ‘national champions’. Recently in March there have been calls for companies to ‘reshore’ operations which they had outsourced to other countries – including not only third countries but also other member states. Targets included Peugeot and Renault and there have been calls for the European Commission to provide support for such moves.
Continue Reading Horizontal Mergers in the EU

On January 30, 2020, The European Commission fined a group of companies belonging to the Comcast Group, including NBCUniversal, €14.327 million for illegally restricting sales of film merchandise products in Europe. The fine already includes a 30% reduction that was awarded for NBCUniversal cooperating with the European Commission beyond what is required by law.
Continue Reading Sale Restrictions in the European Union Attract Large Fines

On December 17, 2018, the European Commission (EC) imposed on the clothing company Guess a hefty penalty of EUR 40 million for allegedly severe restrictions relating to the online sales activities of its authorized distributors. The full text of the Decision was published by the EC on January 25, 2019.
Continue Reading Guess Where Enforcement Stands Post E-Commerce Sector Inquiry?

interIn this briefing, we describe how certain employment practices, such as no-poach or wage-fixing agreements, may infringe competition law, a topic that has recently taken centre stage in the US and is also firmly, although more discretely, on the radar of antitrust authorities in Europe, but perhaps not yet on that of companies. Here is why it should be.
Continue Reading New Year’s resolution for EU antitrust compliance teams: “Putting HR practices on my radar screen”