Businesses are facing particular challenges due to the coronavirus crisis and they can play a crucial role in overcoming the effects of such a crisis. The exceptional circumstances of this time and its related challenges may trigger the need for companies to cooperate with each other in order to overcome the crisis to the ultimate benefit of consumers. This would include, for example, cooperation in order to ensure the supply and fair distribution of essential scarce products and services to all consumers. In response to this need, the European Commission, the EFTA Surveillance Authority and the National Competition Authorities that together form the European Competition Network have issued a joint statement on the application of the antitrust rules during the current coronavirus crisis, explaining how competition authorities can help companies deal with these unprecedented times. A similar statement by the International Competition Network was published on 8 April 2020.
The Commission has already issued several sets of guidelines that can help companies assess the compatibility of their business arrangements with EU competition law (see notably Commission’s Guidelines on Article 101(3), the Horizontal and the Vertical Guidelines). However, for specific cooperation initiatives with an EU dimension, that need to be swiftly implemented in order to effectively tackle the coronavirus pandemic, and where there is still uncertainty about whether such initiatives are compatible with EU competition law, DG Competition is ready to guide companies, associations and their legal advisors.
On 8 April 2020, the Commission adopted a Temporary Framework Communication, setting out the main criteria that the Commission will follow when assessing cooperation projects aimed at addressing a shortage of supply of essential products and services during the coronavirus outbreak. The document also foresees the possibility of providing companies with written comfort (via ad hoc “comfort letters”) on specific cooperation projects falling within the scope of the Temporary Framework. Please also see the press release. On the basis of this Temporary Framework, the Commission has issued on 8 April 2020 a comfort letter to “Medicines for Europe”, an association of pharmaceutical manufacturers, and participating companies in relation to a voluntary cooperation project to address the risk of shortages of critical hospital medicines for the treatment of coronavirus patients. On 25 March 2021, the Commission issued a further comfort letter, addressed to co-organisers of a pan-European matchmaking event, which aims at addressing bottlenecks in current production of COVID-19 vaccines and accelerating the use of additional available capacities across Europe. The comfort letter identifies the conditions under which the matchmaking and exchanges between participating companies, including direct competitors, can take place at this matchmaking event in compliance with the EU competition rules.
In order for businesses to request guidance (within and outside the scope of the Temporary Framework), we have set up a dedicated mailbox COMP-COVID-ANTITRUST@ec.europa.eu that can be used to seek informal guidance on specific initiatives. In order to facilitate a swift follow-up, companies are asked to provide upfront as much detail as possible on the initiative, including: (i) the firm(s), product(s) or service(s) concerned; (ii) the scope and set-up of the cooperation; (iii) the aspects that may raise concerns under EU antitrust law; and (iv) the benefits that the cooperation seeks to achieve, and an explanation of why the cooperation is necessary and proportionate to achieve those benefits in the current circumstances.
Please note that DG Competition can only provide guidance on the compatibility of such cooperation initiatives with EU antitrust law. Individual queries relating to consumer protection or unfair commercial practices should be directed via the Online Dispute Resolution platform (for online purchases), the European Consumer Centres Network (for cross-border issues), national out-of-court dispute resolution bodies, or other means when the direct contact with the trader does not solve your consumer problem. Further information on consumer protection aspects, including the common position of the consumer protection authorities of the EU Member States to stop scams and unfair practices amidst the ongoing coronavirus pandemic can be found here.
Please also note that the competition authorities of the EU Member States are also competent to apply the EU competition rules in their respective territory. They are therefore well placed to deal with specific antitrust issues that primarily concern their particular Member State. For local or national cooperation issues, we recommend that companies, associations or their legal advisers contact directly the competent National Competition Authority.
Finally, the Commission wishes to underline that under these exceptional circumstances, it is more important than ever that businesses and consumers receive protection under competition law. The European Commission will therefore continue to closely and actively monitor relevant market developments to detect companies which take advantage of the current situation to breach EU antitrust law. The European Commission also encourages businesses and citizens to continue reporting any cartels and other antitrust violations, including abuses of dominant positions, that may come to their attention.
In addition to the usual channels for contacting the European Commission or submitting an antitrust complaint, individuals can help anonymously in the fight against cartels and other anti-competitive practices through the Commission’s whistleblower tool.
The Commission’s leniency programme, which allows businesses to report their own involvement in a cartel in exchange for a reduction of the fine imposed on them, also remains fully applicable during these exceptional times.
Please note that individual messages sent to the address COMP-COVID-ANTITRUST@ec.europa.eu should not exceed 30MBs