Does the COVID-19 crisis affect the enforcement of competition law?

The European Commission, in its Temporary Framework Communication  of 8 April 2020 regarding the assessment of antitrust issues during the crisis, underlines that, in the current exceptional circumstances, it is more important than ever that undertakings and consumers receive protection under competition law. It will therefore continue to closely and actively monitor relevant market developments to detect instances of undertakings taking advantage of the current situation to breach EU antitrust law, either by engaging in anti-competitive agreements or abusing their dominant position. 

Similarly, in its Communication  of 13 March 2020, the Luxembourg Competition Council (Conseil de la Concurrence, hereafter the "Council") warns undertakings against abusing the current situation to the detriment of consumers or competitors. Moreover, on 31 March 2020, the Council adopted Guidelines  concerning the enforcement of competition law during the COVID-19 crisis (Document d’orientation à destination des entreprises. Impact du Covid-19 sur les actions du Conseil de la concurrence). In this document, the Council indicates that it will not accept anti-competitive behaviour by undertakings, such as:

1. a)    exchanges of information on future prices or commercial strategies;
2. b)    distributors excluding their smaller rivals from any cooperative or collaborative effort with a view to achieving security of supply or denying rivals access to supplies or services;
3. c)    abuse of a dominant position on a market (where the dominant position could result from particular circumstances arising from this crisis), such as the significant price increase above the competitive level;
4. d)    collusion between companies seeking to mitigate the commercial consequences of a decline in demand by artificially maintaining high prices to the detriment of consumers; or
5. e)    greater coordination than is necessary to deal with the problem in question (for example: if coordination extends to the distribution or supply of goods or services which are not affected by the pandemic or the exchange of more sensitive information than necessary to achieve the objective targeted by the coordination).

Notwithstanding the above, current exceptional circumstances may be a reason for competition authorities to relax, temporarily, the strict application of competition law rules. Currently, several competition authorities are setting up task forces to consider and respond to antitrust issues that arise as a result of the outbreak.