The CMA has provided guidance on its expected approach to merger assessments during the Covid-19 pandemic. While the timescales and substantive assessment of a merger’s effects on competition remain unchanged, the CMA has made a number of adjustments to its working arrangements in order to meet deadlines and progress cases. However, it is likely that some aspects of investigations may be subject to some delay.
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Joint DOJ/FTC Antitrust Statement on US Labor Markets in the COVID-19 Crisis
On Monday April 13, 2020, DOJ and the FTC issued a joint statement warning employers that COVID-19 does not provide a reason to tolerate anticompetitive conduct that harms workers. The agencies said that they are on alert for collusion and other anticompetitive conduct in labor markets during the crisis. They are focused on agreements to
Changes to Merger Rules
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.
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Collaboration Between Competitors in Times of Crisis
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.
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Measures to Protect Against Predatory Conduct
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.
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Horizontal Mergers in the EU
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.
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Brexit – A Long Goodbye
On January 31, the UK exited the EU, after more than three years of constitutional turmoil. The UK now embarks on a year of transition and negotiations as it heads out into a world of new trade relations, with opportunities and challenges in equal measure. This is a watershed moment for all companies who trade in or out of the UK or the EU. Whether trading in goods or services, companies face strategic re-assessments not just of where they trade, but how they organize their trading activities: upstream for inputs and downstream to their customers and markets. How will they be affected – from a regulatory, trade, customs, commercial, investment and disputes perspective?
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UK Competition Law Enforcement Post-Brexit: Choppy Waters Ahead
CMA Brexit Draft Guidance
On 28 January 2019 the UK Competition and Markets Authority (‘CMA’) issued draft guidance on the effects of any no-deal Brexit on the CMA’s functions and its enforcement approach. This guidance has been made more urgent by the continuing UK political divisions that have plagued the Brexit process and which could see the UK crash out of the EU without any deal in place on 29 March 2019.
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UK Competition and Market Authority Takes Another Stab at Most Favored Nation Clauses
Brexit may well be around the corner, but antitrust enforcement is still alive and well on the other side of the Channel. On November 2, 2018, the Competition and Markets Authority (CMA), the UK national competition authority, announced that it had provisionally found that ComparetheMarket, a home insurance price comparison site, may have infringed both
House of Lords Report on Brexit and Competition: What Does it Mean for Businesses?
Following an inquiry in July 2017, the House of Lords’ European Union Committee published on February 2, 2018, a report titled – ‘Brexit: competition and State aid’ – on the future of the UK’s competition law regime after Brexit.
The House of Lords report provides a detailed account of the most pressing issues that the UK’s competition law regime is facing ahead of Brexit. It also shows the high levels of uncertainty that businesses operating between the EU and the UK face.
This uncertainty suggests that businesses should – at least for now – adopt a cautious approach, for example, when formulating their distribution and acquisition strategies in the UK.
Whatever the statutory changes to the UK’s competition law regime after Brexit are, EU law will still remain an important factor to consider when taking business decisions, especially because of the geographical proximity and close trading relationships between the UK and the EU. This means that going forward businesses need to have guidance.
Steptoe has years of experience in successfully advising businesses on their strategic decisions in the EU and the UK. Our experienced lawyers can help your business to successfully navigate the demands and potential opportunities of Brexit.
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