EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

saving cartels in times of crisis? After all, mergers are generally something like structural institutionalised long-term cartels. And we know from history the phrase “cartel as child of distress”. I mean nonetheless that reasonable but strict applying the rules for the statutory exception to the cartel prohibition is needed, especially in a crisis. Because of the health emergency, one can only expect a more accommodating and expansive interpretation of the general cumulative conditions for exempting agreements from the prohibition under Section 3(4) of the Czech AT law or Article 101/3 TFEU (Bejček 2020, p. 5). Thus, e.g., it might be considered a more lenient approach to joint purchasing ensuring a more reliable supply of key commodities with lower transaction costs; to cooperative joint ventures; to the exchange of commercial information to the extent necessary to cope with an emergency situation; the ”capping” of prices of key products or services for consumers (but it is also about the absolute level of the cap); the sharing of technology, know-how and standardisation for the sake of production and smooth distribution of key commodities; a more lenient approach could be applied more generally, but perhaps selectively for the health sector only, etc. In addition to a more generous approach to the application of exemptions from anticompetitive agreements, the so-called prioritisation under Section 21(2) of the Czech AT law can legitimately be applied, as the impact of nominally (typically) anticompetitive behaviour on competition in times of crisis and in the short term can be considered negligible. Increased vigilance is needed to ensure that predators who prey on consumers and public budgets do not prey on exemptions justified by the crisis (Kianzad, p. 250 ff.). However, some simplistic and mechanistic approaches to excessive pricing (such as providing a “safe harbour” in the form of a maximum allowable deviation between the price of a product and the cost of its production of 20% – Frank, p. 321) have met with criticism (Ridyard, p. 481). The opponent does not consider it possible to regard price increases as proof of market dominance and argues that the application of dominance laws whenever prices and margins rose significantly during the COVID-19 crisis could pose more of a threat to consistent competition law enforcement than they solve (ibid, p. 486). Any reduction in AT standards must be convincingly justified for the time necessary and proportionate to the potential harm to competition. AT law cannot be sacrificed for the sake of a crisis, despite a possible and convincing (populistic) “explanation”. Exceptions to it must be temporary, narrow, and inevitable and cannot become the de facto “new norm”. Competition is a social good with long term strategic value, and it is not to be trifled with.

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