EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Article 101 TFEU would already be rather old-fashioned if it were to make it impossible to be interpreted in a way that it did not matter whether the “meeting of minds” was achieved by natural human beings or by their programmed technical assistants, even if they were hiding behind the veil of artificial intelligence (similarly Greenhalgh, p. 534). Moreover, even self-learning algorithms can and should be tested before deployment in real market conditions (risk assessment) and the consequences of deployment can be modelled (harm identification; Descamps et al. p. 39). 3.3 Competition Distorted by Pandemic? Quite recently, the COVID-19 pandemic has become a new challenge and a test of the resilience and functionality of the AT toolbox in extraordinary economic and social conditions. The world had to face calls for more generous exemptions from cartel law in order to solve scarcities through cooperation instead of rivalry. Producers and distributors were faced with unprecedentedly excessive demand for scarce goods, which they had to deal with in some way; the trend towards crisis cartelization is usually associated with a reduction in excess supply (Schinkel, Ailly, p. 1). What is more, pandemics have strengthened the already exceptionally strong position of digital gatekeepers and increased the dependence of consumers and the public sector on their services. Online platforms have become indispensable even for ensuring the functionality of public administration and state power and they have de facto performed services of public importance and helped to mitigate the adverse effects of the pandemic. This too has provided the impetus for the design of regulation in DMA and DSA. It is even suggested (Šmejkal, p. 23) that this combination of influences will lead to a shift of AT towards ex ante regulation. The willingness to make exceptions has been and is extremely high in the current pandemic. Necessary and temporary “above-standard” cooperation between competitors in order to ensure the necessary production and distribution of hygiene products, medical devices and pharmaceuticals is accepted at the level of the ICN, the ECN, the Commission and the national authorities. More lenient and helpful approach may be observed towards cooperation between competitors which, under “normal conditions”, would be regarded as an infringement of competition. Other measures such as informal “comfort letters” and extended “competition advocacy” for anxious competitors are also being adopted. In the same breath, however, it is confirmed that competition rules remain in force. Thousands of state aids have been approved during pandemics for they were motivated by saving businesses, industries, or regions suffering from pandemics and the “lockdown of society”. Competition became in some extent a “luxury good” in times of crisis. On the other hand, if there are “business saving mergers” (cf. the failing firm defence doctrine), why not actually allow temporary

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