EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

results for a single competitor operating in more than one EU country, unless it is an inspection conducted by the EC, may lead to different conclusions and thus to a fluctuation in legal certainty for a particular competitor. Second. The existence of a more detailed methodology gives the investigated subjects wider possibilities of procedural defense. And how against a possible deviation from the accepted rules, or the existence of interpretative ambiguity. In addition to reservations about the record made during the inspection, in many cases it is a matter of filing an administrative action for unlawful interference. Legal certainty has been, and to a large extent is today, undermined by the existence of the pandemic situation in 2020–2021, caused by the COVID-19 viral infection. Thanks to anti-epidemic measures, very few inspections were carried out across the EU during this period. The impossibility of carrying out an inspection caused by the frequent closure of entire industries or states and the regulation of teleworking has made the supervisory role of competition authorities considerably more difficult. In such a situation, many competition authorities have assessed that verification visits can only be carried out when the pandemic situation has passed or at least mitigated it to a socially acceptable level. In 2020, at the beginning of the pandemic, there was no unanimous opinion within the ECN on whether and how to evaluate certain types of anti competitive behaviour and whether an inspection was necessary to demonstrate them, mainly in the area of purchase and sale of medical supplies and coordinated procedures of manufacturers and distributors of disinfectants and medicines. That uncertainty on the part of the competition authorities has also led to a breach of legal certainty on the part of the competitors concerned. It was only after the EC issued a recommendation on how individual Member States should approach the application of competition law that it led to a reduction in the legal uncertainty of competitors (Directive (EU) 2019/1, Commission Notice on cooperation within the Network of Competition Authorities (2004/C 101/03)). The resumption of investigative activities by the competition authorities subsequently took place in mid-2021, when the anti-epidemic rules were partially relaxed across the EU. Examples can be found cross-cutting in all Member States. For example, theGreekCompetitionAuthority carried out seven inspections during June and July. For inspection cases that were postponed due to the pandemic, data or inputs had to be updated. It should be noted that in cases of cartel behaviour or abuse of a dominant position, the impact of competition rules has not been limited during the pandemic, as was the case with the COVID-19 State aid framework. Thanks to the aforementioned work from home, which has become an essential standard for some competitors, the competition authorities have been forced to adjust their internal rules for on-the-spot inspections. In particular, these were issues relating to the judicial authorisation for an inspection where it

248