CYIL vol. 13 (2022)

MICHAL PETR

CYIL 13 ȍ2022Ȏ

2.3 Partial conclusions The response to COVID-19 from competition authorities has been rather limited as far as the enforcement of competition law is concerned. No material rules of competition law have been modified, with the exemption of certain niche agricultural sectors. Even though it had been claimed that the situation might require a specific block exemption, 41 none was even proposed. The competition authorities rather referred the undertakings to the general exemption from anticompetitive agreements, contained in Article 101 (3) TFEU, or its national equivalent, and its general guidance on them issued before. 42 The Commission added in this regard some clarification, the national competition authorities rather stressed that the competition law remains fully applicable. Even though there have not been reported many investigations of COVID-related practices, it might be questioned to what extent was this sufficient. Admittedly, all the competition authorities we are discussing in this article invited the undertakings to discuss their arrangements with them, the response was however negligible. Arguably, this was caused by the nature of the crisis – there simply was no time for the sufficiently in-depth legal analysis. If we however think about the problems ahead, we put forward that a more robust guidance from competition authorities would be welcome, in particular in the energy sector, that is currently very much strained by the soaring energy prices and that is expected to go through a total overhaul due to the New Green Deal. We put forward that for the purposes of future energy change, where the extended cooperation among undertakings might be expected, a more detailed guidance would be needed, similar to the Commission’s guidelines on specific types of horizontal and vertical agreements. Unlike with respect to COVID-19, there is not an acute crisis in this sector yet, so there is time enough for preparation of such a document. Conversely, we do not think that the assurances concerning the enforcement priorities, as the Commission did, are sufficient. The fact that a competition authority does not consider certain practice its enforcement priority does not mean it is legal, and even though it might not be investigated by it, the case might come to civil courts in course of private enforcement. Such a “shield” from public enforcement might have been sufficient during the acute COVID related crises, but it is arguably not enough for complex, long-term arrangements, that might be expected in the energy sector. We thus do not see much room for such arrangements in the future. As far as the “comfort letters” are concerned, the Commission made it clear that it is not changing its policy and the letters will be provided only temporarily, during the crisis; the Temporary Antitrust Framework “ does not mean that the Commission has re-introduced a notification system or abandoned its discretion to decide how and when to give guidance. Self-assessment remains the rule, but the Commission is ready to engage and discuss and will ensure that its extensive general guidance reflects today’s needs and business realities”. 43 41 BOSTOEN, F., COLPAERT, N., DEVROE, W., GRUYTERS, J., MICHAUX, L., VAN ACKER, L. ( op. cit. ), p. 74. 42 Of utmost relevance was the Communication from the Commission Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements of January 2011 (2011/C 11/01). 43 Commission Staff Working Document accompanying the document Report from the Commission to the

354