Antitrust Law and Merger Control06.04.2020 Newsletter

Measures Taken by Competition Authorities in Response to the COVID 19 Crisis

(Last update: 2 June 2020)

The Corona crisis does not leave competition law unaffected. We have compiled an overview of the current measures taken by competition authorities in various jurisdictions (including a link to the respective official’s statement). Many countries provide for facilitated possibilities to cooperate, as long as the competitors contribute to overcoming the crisis. However, the competition authorities will continue to take action against cartel violations (especially price and market agreements) and (price level) abuse. Many authorities are also currently requesting that non-essential merger control notifications be submitted later. In some cases, the procedural deadlines have been adjusted or suspended.

The overview is updated regularly and is also available here.

Our antitrust law team will be happy to answer your questions at any time.

 

*By clicking on the respective country you will be forwarded to the corresponding website*

International Competition Network (ICN)

The steering committee of the network comprising 140 competition authorities reaffirms the importance of healthy competition for the economy and consumers and therefore insists on the enforcement of the competition rules. At the same time, the ICN recognizes the need for cooperation between companies, limited in time and scope, to ensure that the population is supplied with goods. Competition authorities are therefore called upon to communicate guidelines and operational and procedural adjustments in a transparent manner.

European Competition Network (ECN)  

The joint statement reflects the views of the European Commission, the national competition authorities of the EU/EEA member states and the EFTA Surveillance Authorities.

Temporary cooperations between competitors in order to ensure the supply of essential scarce products do not violate competition law.

The ECN will not actively intervene against temporary cooperations and concerted measurements by competitors, which are necessary to avoid supply shortages.

However, the authorities will take action against those companies that try to exploit the current situation by forming cartels or abusing their dominant position.

Manufacturers can set maximum prices for their products. This is to prevent unjustified price increases and exorbitant prices at the distribution level.

Temporary Framework / European Commission / EU Kommission II

The EU Commission has published a temporary framework setting out the main criteria for the antitrust assessment of cooperation projects during the Corona crisis. The privilege is limited to the area of system-relevant products, especially the health sector. In individual cases, the Commission is prepared to issue written assessments, so-called “comfort letters”.

On request, the EU Commission provides informal assessments of the admissibility of cooperation. For this purpose, a dedicated e-mail address has been set up (COMP-COVID-ANTITRUST@ec.europa.eu). The assessment requires information on (i) the firms, (ii) the products or services concerned, (iii) the scope and set-up of the cooperation, (iv) the antitrust concerns and (v) the intended benefits and (vi) an explanation of why the cooperation is necessary and proportionate to achieve the benefits.

The EU Commission asks to postpone merger control notifications that are not necessarily required. For the transitional period, the Commission will also accept submissions in digital form. The dedicated e-mail address is: comp-merger-registry@ec.europa.eu.

Australia 

The ACCC will actively consult with companies regarding possible approvals of cooperation between competitors that are necessary in the public interest (e.g. cooperation to ensure food supply). The ACCC encourages all companies to submit requests directly via adjudication@accc.gov.au. These requests will be taken forward quickly.

Medical technology companies may cooperate according to a temporary exemption in order to coordinate the supply and the potential production in Australia of respiratory equipment, test kits, personal protective equipment and other medical devices needed to fight the pandemic. This also applies to suppliers and distributors of medical products. They may exchange information and coordinate orders and delivery requests.

In the meantime, cooperation has been provisionally permitted in more and more sectors, concerning such as the oil industry, private health insurance companies, private and state hospitals, the energy industries, and at last life insurer, and the retail trade to negotiate rent reductions, financial services regarding data exchanges and mining companies.

The ACCC indicates that in individual cases, the timelines in merger control proceedings may be extended.

Austria / Austria II

The Austrian legislator modified the deadlines regarding procedures by the competition authority and judicial phase II proceedings at the Cartel Court. According to the 2nd COVID-19 Act, the examination or decision period for starts at the earliest on 1 May 2020. Furthermore, applications can now be submitted electronically.

Belgium / Belgium II (only in French and Dutch)

The Belgian Competition authority invites companies to delay any project that is not urgent.

According to a communication, the Belgian competition authority is available for informal consultations. The communication contains guidelines on the criteria for the informal consultations and on the procedure.

Bulgaria

Cooperations to ensure the supply of the citizens are permitted. Manufacturers can set maximum sales prices to prevent price abuse.

Canada / Canada II / Canada III / Canada IV

The Canadian antitrust authority announces that hearings and other proceedings requiring personal appearance may not be able to be conducted on time. Competition rules are not modified.

The Canadian Competition Bureau recognizes that the current situation requires special measures. Where companies cooperate to a limited extent, in terms of duration and scope, to ensure the supply of products and services that are critical to Canadians in the current situation, no inspections will be carried out. The standard of good faith applies. Those who exploit the situation for competitive advantage will continue to be controlled. Companies can contact this address for informal advice on the concrete form of a cooperation: CB-COVID19-BC@canada.ca

Croatia / Croatia II

The Authority shall not receive parties until 18 May 2020. Inquiries can be sent by mail or to the new e-mail addresses gencija.ztn@aztn.gov.hr or pisarnica@aztn.gov.hr. Further measures beyond the joint statement by the ECN are not published.

Cyprus 

No further measures beyond the joint statement by the ECN.

Czechia 

The authority allows cooperations between companies as long as it secures the supply of the citizens.

Denmark I / Denmark II / Denmark III

In addition to the information on the ECN joint statement, the merger control deadlines have been suspended for 14 days since 18 March.

On April 16, it was announced that the merger control periods are still suspended until May 10.

Estonia 

No measures beyond the joint statement by the ECN were announced.

Finland 

Businesses are allowed to collaborate to ensure the supply and the equal distribution of products to the consumers.

France / France II

Merger control deadlines are suspended from 12 March until one month after the end of the state of health emergency. The authority asks for merger projects to be postponed, if possible.

The Authority encourages everyone to notify companies that may be taking anti-competitive measures, the notification should be made to this address: signalement.externe@autoritedelaconcurrence.fr  

In addition, the Authority emphasises that it is also available informally to companies planning to cooperate as a result of the COVIID 19 crisis.

Germany I / Germany II 

The Federal Cartel Office (FCO) is still reachable via e-mail, telephone and fax or by mail. Deadlines can also still be met by sending a fax.

To ensure accessibility, the Office has set up additional e-mail boxes. The list of e-mail addresses is available here.

Personal visits at the FCO are not possible until further notice. However, necessary meetings can be held as telephone conferences.

The FCO asks to consider in each individual case whether a project has to be submitted to the FCO at this time or whether it could possibly postponed.

The Federal Parliament accepted a temporary change to the ARC. For all mergers notified between 01.03. and 31.05.2020, the review period of the Phase I procedure will be extended from one to two months and that of the Phase II procedure from four to six months. In addition, interest on antitrust fines will be suspended until 31.06.2021.

Greece 

At present, merger control deadlines are not suspended, but the Authority reserves the right to make an amendment and will then communicate it publicly on its website.

Maximum retail prices can be set to prevent price abuse.

Hungary 

The authority encourages notifying parties where possible to delay filing planned merger notifications until further notice.

Iceland

The Icelandic Competition Authority will allow exemptions from the ban on cartels within 48 hours of notification of the cooperation, provided that the competent surveillance authority is given access to the cooperation. Sectors in which cooperations have already been approved can be found under the link provided.
The examination of mergers will continue unchanged, but may be prioritized in urgent cases. If possible, projects are requested to be postponed for the next three weeks.
Any indications of abusive behaviour, in particular exorbitant prices, should be reported to the authority via samkeppni@samkeppni.is, or 585-0700.

India / India II / India III / India IV / India V

Until further notice, mergers can be notified electronically (via comb.registry@cci.gov.in). Pre-filing consultation via video conference can be requested at cci-consult@nic.in. Information on competition infringements must also be submitted electronically (via atdregistry@cci.gov.in). Fees must be paid electronically. All hearing dates dated up to 03.05.2020 will be postponed.

The competition authority CCI has issued a guideline regarding possible cooperation. In particular, the legal presumption of a restriction of competition of certain types of conduct shall not be applicable if the cooperation increases efficiencies.

Ireland  / Ireland II

The deadlines for merger control have not yet been suspended. For the time being, notifications must be submitted by means of this completed form via e-mail (mergers@ccpc.ie). The CCPC is encouraging notifying parties where possible to delay filing planned merger notifications until further notice. As of 01.07.2020 a simplified notification procedure will apply. The Irish Competition Authority has published guidelines providing a detailed overview.

Italy (only in Italian) / Italy II (only in Italian)

Deadlines for the payment of sanctions, which expire on 15 April 2020 at the latest, will be extended to 1 October 2020. Instalment payments due until 15 April 2020 will be suspended for the time being.

Latvia  

Further measures beyond the joint statement by the ECN are not published.

Lithuania / Lithuania II / Lithuania III / Lithuania IV

Competitors are encouraged to collaborate to ensure the supply to citizens.

The Authority points out that it may not be able to meet the merger control deadlines.

As there are fears that large retail chains are putting unjustified pressure on their suppliers, the authority has informed about possible claims that violate antitrust law and calls on suppliers not to give in to unlawful claims. Suppliers can contact the Authority at mazmenine.prekyba@kt.gov.lt

The Authority has warned the trade associations that they must also comply with antitrust law during the crisis. If they have any questions about cooperation during the crisis, the associations can contact the authority at covid.konkurencija@kt.goc.lt or taryba@kt.gov.lt

Luxemburg (only in French) 

The Authority has produced guidelines for enterprises (only in French).

Mexico / Mexico II / Mexico III / Mexico IV
Collaborations between competitors are not pursued as long as the cooperation serves to secure the supply of the population.

Price agreements between competitors or binding price specifications between supplier and customer are still prohibited.

Notified mergers are to be reviewed more quickly in order to be able to use synergy effects soon.

Certain of deadlines are suspended until 12.06.2020, but these do not include merger control deadlines or opinions on tendering procedures, concessions or authorizations, where the deadlines continue to run normally.

Netherlands  / Netherlands II / Netherlands III

No further measures beyond the joint statement by the ECN. The Dutch competition authority monitors increasing abusive behaviour by traders on trading platforms and asks to report it.

Health insurers may make collective agreements to provide financial support to healthcare providers during the coronavirus crisis (COVID-19).

New Zealand / New Zealand II / New Zealand III /New Zealand IV / New Zealand V

Competitors may cooperate to the extent that this is necessary to ensure the supply of systemically important products and services to citizens.

However, the authority does not tolerate any further agreements on prices, quantities etc.

The Authority has issued guidance for companies and consumers, and guidelines for lenders and borrowers.

Guidelines on business collaborations were also published.

Following temporary changes in competition law, the Authority has published guidelines on how to cope with the new rules. Among other things, the Authority is allowed to clear agreements that restrict competition, but serve the public interest.

Norway I / Norway II / Norway III

In response to the crisis, the Norwegian Government has exempted the transport industry from the cartel prohibition for a period of three months. This is to enable the struggling airlines, such as SAS and Norwegian, to cooperate and ensure the transport of goods. The Competition authority also considers applying the Price Policy act in order to regulate prices of important goods and services.

An amendment to the law, which is valid until 31 October 2020, extends several deadlines for merger control. The deadline extensions concern current and future projects. In addition, certain decisions may in future be taken by a single member of the Competition Tribunal.

Poland / Poland II

The authority is investigating price abuses more closely.

In addition, the behaviour of large retail chains towards their suppliers during the pandemic will be examined more closely.

Portugal I / Portugal II 

The competition authority urges compliance with the competition regulations and issues guidelines for three associations of companies in the pharmaceutical and the banking sectors. In order to promote collaboration of companies, the authority is willing to provide informal advice.

Romania I / Romania II / Romania III

The Authority encourages companies to collaborate in order to ensure the supply of the citizens.

Applications, communications and other documents can be submitted electronically, by e-mail to office@consiliulconcurentei.ro or via the website.

Russia I / Russia II / Russia III / Russia IV

The Authority assesses the COVID-19 pandemic as a "force majeur" and will take this into account in any assessment.

Deliveries from only one supplier are possible, if this is necessary in the current situation.

Stricter price controls apply to the food sector.

The appointments of the authority are suspended for as long as the law allows. Appointments that need to be held urgently will be held using video technology. All parties will be informed of the new dates for their proceedings.
The commissions for procurement complaints under Federal Laws No. 44-FZ and 223-FZ and sector-specific calls for tenders are organised remotely.

Singapor

Inquiries should be submitted by e-mail cccs_feedback@cccs.gov.sg or telephone 1800-325 8282, how a merger control request or other requests are handled will be clarified on a case-by-case basis.

Slovakia 

No further measures beyond the joint statement by the ECN.

Slovenia 

No statement by the competition authority regarding the corona crisis.

South Africa I / South Africa II / South Africa III / South Africa IV / South Africa V

The Authority discourages the initiation of merger control proceedings, unless a involved company is in a precarious economic situation.

Action will be taken against companies that charge abusive prices for system-critical products.

In the private health sector, agreements may be made to the extent that they ensure health care in South Africa. Agreements and cooperations going beyond this are not exempted from the cartel prohibition.

According to investigations, the food retail sector was granted a number of conditions in 2019, which actually have to be implemented by 28.05.2020. The authority has extended this deadline by three months, with the exception of the conditions for exclusive leases, which must continue to be implemented until 28.05.2020.

The competition authority published guidelines on buyer power to support SMEs.

Spain I / Spain II / Spain III

Merger control deadlines are suspended until the state of emergency, declared by Royal Decree 463/2020, is revoked.

All inquiries and complaints regarding the pandemic should be addressed to covid.competencia@cnmc.es.

The competition authority requires that cooperations (i) are necessary and proportionate in the current situation, (ii) are temporary and open to third parties, (iii) that adequate provisions are made to prevent the exchange of sensitive business information between competitors and (iv) contacts are documented and made available to the authority.

Sweden

Sweden has joined the joint statement of the Network of European Competition Authorities. For informal advice on crisis-related cooperation, the authority can be contacted by e-mail at tipsa@kkv.se or by telephone on 08-700 16 00. Beyond the European guidelines, Sweden has published its own guidance on competition and procurement rules during the Corona crisis.

Switzerland 

If the government or authorities order measures to combat the Corona crisis that restrict competition, antitrust law is not applicable. Private companies must nevertheless comply with competition law, even if the crisis may lead to an increased need for cooperation. The WEKO is available for information. It seeks discussions with associations, companies and other authorities on the development of counter-measures, which are compatible with competition law.

Exorbitant prices only violate competition law if these are the result of illegal price agreements or the abuse of a dominant position.

Turkey 

The authority is monitoring price developments in the food sector.

Ukraine

As of now, the Authority is processing merger control applications within the usual (legal) time frame. Like other authorities it’s monitoring price developments for essential goods closely.
You can find further information under the left-hand link at our Ukrainian partner law firm Sayenko Kharenko.

United Kingdom / United Kingdom II / United Kingdom III / United Kingdom IV / United Kingdom V

The British Competition and Markets Authority (CMA) wants to exhaust all possibilities in the food and hygiene sector in order to guarantee the supply of the citizens. Accordingly, British food retailers will be allowed to exchange information on stock levels, share transport and storage capacity and cooperate to keep their businesses open and ensure supplies. In order to overcome possible shortages, personnel may also be exchanged.

However, the CMA stresses that the competition law is still applicable. The CMA will continue to investigate and secure evidence in case of problematic conduct.

Price agreements or the exchange of information on business strategies will continue to be investigated and sanctioned under competition law.

The CMA will not tolerate abusive price increases. Otherwise, retailers are allowed to pass these increases on to the end customers if wholesalers or suppliers demand higher prices. In this case, the retailer is requested to send a message to the CMA naming the wholesaler or supplier who caused the price increase and the extent of the price increase. Such complaints shall be directed to the following e-mail address: covid.monitoring@cma.gov.uk.

Manufacturers can set maximum prices for their products. This is to prevent unjustified price increases and usurious prices at the distribution level.

The Authority has issued guidelines on the conduct of undertakings and an opinion on the treatment of rescue mergers.

USA I / USA II / USA III

Cooperation between companies, even between competitors, is possible.

Questions concerning COVID-19 are expected to be answered within 7 days.

Joint ventures are subject to facilitated conditions if they are useful in addressing the current situation.

In principle, cooperation in research and development do currently not violate antitrust law.

The exchange of technical knowledge, of company-specific data on prices, wages, results or costs may be necessary and will not be sanctioned if it appears necessary in order to deal with the crisis.

Purchasing agreements between health service providers are generally no violation of antitrust law.

Companies needing urgent approval from the authorities can contact ATR.COVID19@USDOJ.GOV. They must explain to what extent the request is related to COVID-19 and describe the planned procedure as well as the effects and persons involved. The authority’s statement of its enforcement intentions will be in effect for one year.

The authorities alert against violations of competition law in the labour market. In particular, agreements to the disadvantage of employees are being pursued.

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Dr. Andrés Martin-Ehlers<br/>LL.M. (London)

Dr. Andrés Martin-Ehlers
LL.M. (London)

PartnerAttorney

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Dr. Daniel Dohrn

Dr. Daniel Dohrn

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50668 Cologne
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F +49 221 2091 333

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Dr. Simon Spangler<br/>LL.M. (UCT)

Dr. Simon Spangler
LL.M. (UCT)

PartnerAttorney

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 183
F +49 69 707968 111

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