CYIL vol. 13 (2022)

MICHAL PETR

CYIL 13 ȍ2022Ȏ

2. Cooperation of Undertakings in Challenging Times Under normal circumstance, any cooperation among independent undertakings that might distort competition is prohibited as an anticompetitive agreement, 5 unless very strict conditions for an exemption are met. 6 The anticompetitive agreements include price-fixing, including setting minimal prices, market-sharing, limitation of output, sharing commercially sensitive information and other arrangements distorting competition. Such cooperation is prohibited, whether it is conducted on the level of the undertakings themselves or through a decision of an association of them (e.g. trade associations). In April 2020, the steering committee of the International Competition Network (hereinafter referred to as “ICN”), the association of practically all the competition agencies throughout the world, declared that while “[t]he application of competition law remains vital in a period when companies and the economy suffer from crisis conditions”, “[t]his extraordinary situation may trigger the need for competitors to cooperate temporarily in order to ensure the supply and distribution of scarce products and services that protect the health and safety of all consumers”. 7 Along the same lines, the European Competition Network (hereinafter referred to as “ECN”), an association of all the EU competition authorities, declared already at the end of March 2020 that “ the ECN will not actively intervene against necessary and temporary measures put in place in order to avoid a shortage of supply ”. 8 2.1 Specific rules on the EU level To implement these principles on the EU level, the Commission adopted the Temporary Antitrust Framework in April 2020 (also referred to as the “Framework”), primarily in order to introduce the criteria the Commission would follow in assessing “ cooperation projects aimed at addressing the shortage of essential products and services during the COVID-19 outbreak ”. 9 The Framework primarily addresses the coordination within trade associations, reaffirming that certain forms of cooperation, including coordination of joint transport for input materials or sharing aggregate production and capacity information, 10 are in line with competition law, provided the competitors do not share individual commercially sensitive information, 11 as 5 Art. 101 (1) of the Treaty on the Functioning of the European Union (hereinafter referred to as “TFEU”). 6 According to Art. 101 (3) TFEU, the prohibition does not apply to agreements which contribute to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which do not (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives and (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. 7 ICN Steering Group Statement: Competition during and after the COVID-19 Pandemic. Available at: https:// www.internationalcompetitionnetwork.org/wp-content/uploads/2020/04/SG-Covid19Statement-April2020.pdf . 8 Joint statement of the ECN on application of competition law during the Corona crisis, available at: https:// ec.europa.eu/competition/ecn/202003_joint-statement_ecn_corona-crisis.pdf. 9 Temporary Antitrust Framework, para 5; emphasis added.

10 Ibid , para 12. 11 Ibid , para 13.

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