What significance does the coronavirus crisis have for antitrust law? We summarise the most important opportunities and risks.
The coronavirus should not stop antitrust law, but German economic leaders are expressing interest in temporarily relaxing certain cartel laws in order to encourage companies to work closely together in response to the crisis.
Federal Economics Minister Peter Altmaier wants to discuss cooperation between the food industry and retail trade with cartel authorities, which Andreas Mundt, President of the Federal Cartel Office (Bundeskartellamt), has welcomed by saying that he "is of course available for any discussion with companies, associations and politics."
Germany is not alone in recognising that cooperation between businesses and industries are necessary. The British government has announced comparable flexibility. In Norway, too, a temporary exemption from the ban on cartels has been in force for days throughout the entire transport sector.
Competition rules are sufficient to counter the crisis
In contrast, EU competition authorities, which are linked in the European Competition Network (ECN), do not consider changes in the law necessary at this time. European authorities have recognised the social and economic impact of the crisis and stress that competition rules are flexible enough to account for changing market realities such as the coronavirus crisis. According to EU authorities, companies in need of further guidance can turn to competition authorities for assistance.
Accordingly, in a notification dated 17 March 2020, the German Bundeskartellamt emphasised that it is able to cooperate with struggling companies.
Hence, companies affected by the crisis should take up the ball and examine what freedoms competition law leaves them to improve their services and reduce costs.
Possible exemptions from the ban on cartels during the pandemic
Even under current rules, restrictions on competition necessary to achieve cost reductions or an improvement in supply can be exempted from the ban on cartels. Each company can decide on this independently after obtaining legal advice or in coordination with the responsible antitrust authorities.
Bundeskartellamt President Mundt affirmed that his office is open to crisis-related cooperation. "Cartel law allows extensive cooperation between companies," he said, "if there are good reasons for this, as in the current situation."
This particularly applies where the direct concern is to supply consumers. As the Norwegian example shows, cooperation in the transport sector can be justified. A German example for cooperation in the transport sector concerns capacity reductions and capacity swaps in the ferry industry, which the Bundeskartellamt tolerated during the 2008 financial crises because of evident cost reductions and efficiency gains.
An exchange of information to reduce costs and improve supply can also be exempted from the ban on cartels.
Stronger supply relationships between competitors in order to avoid short-term supply bottlenecks are also conceivable (i.e. the so-called colleague supply).
What remains prohibited are classic restrictions of competition, such as price fixing, territorial and customer allocation and agreements on reducing supplies.
Abuse of market power still not permitted
In the case of dependence, a dominant supplier must supply affected customers on a non-discriminatory basis, but the supplier does not have to treat newcomers equally.
In the event of unjustified delivery stops, affected customers can defend themselves by means of an interim injunction, but the requirements for successful injunction application are high.
Excessive pricing, for example, concerning face masks, disinfectants or respirators could also be caught.
In the long run, this crisis may increase the market shares of the surviving companies, so that they fall within the scope of the prohibition of abuse.
Merger control: no changes in Germany so far
The Bundeskartellamt asks companies to examine whether the notification of a project is necessary at present or can wait. For the time being, notification obligations and the deadline regime of merger control in Germany remain unchanged.
In other countries such as Austria, there are already changes. For notifications filed in Austria, the examination period will not begin until 1 May 2020. For unproblematic cases, a waiver of examination is conceivable.
Changes in the deadline regime should be taken into account when planning transactions, including the relevant merger control clauses.
Restructuring mergers can be cleared under certain strict conditions, particularly if there is no alternative that is less harmful to competition and the market position of the acquired company would essentially fall to the acquiring company even without the merger.
The instrument of ministerial clearance would probably come too late since the Bundeskartellamt's examination, which takes at least four weeks, must first be awaited.
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