From March 2020 through to 2022, businesses within the EU faced particular challenges due to the consequences of the coronavirus pandemic. However, these businesses were in a position to play a crucial role in mitigating the effects of the crisis. The exceptional circumstances and the related challenges could have triggered a need for companies to cooperate with each other in order to ensure the supply and fair distribution to all consumers of essential and possibly scarce products and services. In response to this need, the European Commission, the EFTA Surveillance Authority and the National Competition Authorities that together form the European Competition Network issued a joint statement on the application of the EU rules on antitrust during the coronavirus pandemic, explaining how competition authorities could help companies deal with the crisis. A similar statement by the International Competition Network was published on 8 April 2020.
Several sets of Commission guidelines already exist to help companies assess the compatibility of their business arrangements with EU competition law (see notably the Commission’s Guidelines on Article 101(3), the Horizontal and the Vertical Guidelines). However, DG Competition was available to guide companies, associations and their legal advisors regarding specific cooperation initiatives with an EU dimension that needed to be swiftly implemented during the coronavirus pandemic, and where there was uncertainty about whether such initiatives were compatible with EU competition law.
On 8 April 2020, the Commission adopted a Temporary Framework Communication, setting out the main criteria for assessing cooperation projects aimed at addressing a shortage of supply of essential products and services during the coronavirus outbreak. The document also foresaw 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 (see press release). On the basis of this Temporary Framework, on 8th April 2020, the Commission issued 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 aimed at addressing bottlenecks in the production of COVID-19 vaccines and accelerating the use of additional available capacities across Europe. The comfort letter identified the conditions under which the matchmaking and exchanges between participating companies, including direct competitors, could take place, in compliance with the EU competition rules. The activities mentioned in these comfort letters are no longer ongoing.
In light of the improvement of the coronavirus crisis in Europe, as well as the relaxation of the pandemic-related restrictions, the Commission withdrew its Temporary Framework (OJ C 381, 4.10.2022, p. 3) on 3 October 2022. The Commission considers that the exceptional circumstances and related challenges that may trigger the need for companies to cooperate in order to mitigate the effects of the crisis are, at this stage, no longer present. However, in the event of a sudden and unexpected deterioration of the sanitary situation and related supply disruptions of essential products and services, companies can instead seek guidance under the revised Informal Guidance Notice (OJ C 381, 4.10.2022, p. 9) that was adopted on the same date. The Commission may provide such guidance subject to the conditions set out in the revised Notice.
Please note that DG Competition can only provide guidance on the compatibility with EU competition 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 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.
The Commission encourages businesses and citizens to report 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, allows businesses to report their own involvement in a cartel in exchange for a reduction of the fine imposed on them.