In April 2020, the European Commission published a communication regarding a temporary framework for assessing antitrust issues related to business cooperation in order to ensure the supply and adequate distribution of essential scarce products and services during the Covid-19 outbreak. The framework concerns the products and services that are now under rapid and exponential growth of demand due to the Covid-19 pandemic, notably medicines and medical equipment that are used to test and treat Covid-19 patients or that are necessary to mitigate and possibly overcome the outbreak. In its communication, the Commission emphasizes that the response to the emergency situation related to the Covid-19 crisis may require different degrees of cooperation, with a varying scale of potential competition concerns.
According to the Commission, business cooperation in the health sector, which would be problematic under EU competition rules in normal circumstances, will not raise any competition concerns in the current exceptional situation provided that such cooperation is designed and necessary to address or avoid a shortage of supply of essential products or services, is temporary in nature and does not exceed what is strictly necessary to achieve the objective of such cooperation. Such cooperation may concern e.g. measures to adapt production, stock management and distribution. In addition, the Commission announced that it will continue to provide specific guidance to undertakings and trade associations on their cooperation initiatives in order to facilitate their self-assessment of such initiatives’ compatibility with EU competition law. In order to increase legal certainty for businesses the Commission may also provide guidance by means of ad hoc comfort letters.
However, the Commission also underlines the importance of following competition rules in the current exceptional situation and that it will continue to closely and actively monitor relevant market developments to prevent undertakings from taking advantage of the current situation to breach EU competition law. Further, the Commission states that it will not tolerate conduct by undertakings that opportunistically seek to exploit the crisis as a cover for anti-competitive collusion or abuses of their dominant position.
The Finnish Consumer and Competition Authority (the “FCCA”) has stated that it will apply the Finnish Competition Act in accordance with the above-mentioned communication from the Commission. The FCCA has, nevertheless, made it clear that it will continue to strictly intervene in cooperation between competitors where the goal is to increase prices instead of ensuring the necessary supply during the pandemic.