CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IMPACT OF COVIDǧ19 ON COMPETITION LAW AND POLICY long as they satisfy the conditions, set generally by the Commission in its guidelines on horizontal cooperation agreements. 12 Even though the Framework clearly prefers – if necessary – the coordination on the level of associations, 13 it also addresses the cooperation among individual undertakings aimed at adapting production, stock management or distribution, which may require exchanges of commercially sensitive information; such a cooperation would normally be “ problematic under EU competition rules ”. 14 The Commission was however prepared to tolerate such arrangements, provided that they are: (i) designed and objectively necessary to actually increase output in the most efficient way to address or avoid a shortage of supply of essential products or services, such as those that are used to treat COVID-19 patients; (ii) temporary in nature (i.e. to be applied only as long there is a risk of shortage or in any event during the COVID-19 outbreak); (iii) not exceeding what is strictly necessary to achieve the objective of addressing or avoiding the shortage of supply; and (iv) the undertakings document all exchanges and agreements between themselves and make them available to the Commission on request. 15 These criteria broadly follow the conditions for an exemption according to Article 101 (3) TFEU, and such agreements would thus arguably be in line with competition law, irrespective of the proclamation contained in the Temporary Antitrust Framework, 16 the Commission however added that in any event, such arrangements would not be its enforcement priority, 17 i.e. it would not actively investigate them. Finally, the Temporary Antitrust Framework addresses cooperation among undertakings encouraged or coordinated by public authorities, which is also to be perceived legal, or at least not an enforcement priority; 18 specifically, coordination in the context of an imperative request from public authorities would be in line with competition law, 19 which however clearly stems from settled case law of the Court of Justice of the European Union (hereinafter referred to as “CJEU”). 20 The Temporary Antitrust Framework thus reaffirmed the undertakings that certain forms of cooperation may be in line with competition law, it however did not bring any new substantive rules in that regard. 21 12 Ibid , para 15. 13 For the same conclusion, see BOSTOEN, F., COLPAERT, N., DEVROE, W., GRUYTERS, J., MICHAUX, L., VAN ACKER, L. Corona and EU Economic Law: Competition and Free Movement in Times of Crisis. European Competition and Regulatory Law Revie w, 2020, No. 2, p. 75. 14 Temporary Antitrust Framework, para 15. 15 Ibid. 16 BOSTOEN, F., COLPAERT, N., DEVROE, W., GRUYTERS, J., MICHAUX, L., VAN ACKER, L. ( op. cit. ), p. 75. 17 Temporary Antitrust Framework, para 15. 18 Ibid. 19 Ibid , para 16. 20 CJEU judgement C-359/95 P and C-379/95 P Ladbroke racing , para 33. 21 For the same conclusion, see BOSTOEN, F., COLPAERT, N., DEVROE, W., GRUYTERS, J., MICHAUX, L., VAN ACKER, L. ( op. cit. ), p. 75.

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