European Commission’s Antitrust Guidance for Undertakings Collaborating
On 8 April 2020 the European Commission (the “Commission”) published its Communication on the Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak (the “Framework”).
The COVID-19 outbreak, its impact on the economy and the scope of the Framework
The Commission acknowledges that undertakings are facing exceptional challenges due to the COVID-19 crisis and that exceptional circumstances of this time and its related challenges may trigger the need for undertakings to cooperate in order to overcome or to mitigate the effects of the crisis to the ultimate benefit of citizens.
The purpose of the Framework is to explain:
- the main criteria that the Commission will follow in assessing these possible cooperation projects aimed at addressing the shortage of essential products and services during the COVID-19 outbreak
- temporary process that the Commission has exceptionally set up to provide, where appropriate, ad hoc written comfort to undertakings in relation to specific cooperation projects
Main criteria for the assessment of cooperation projects
The Commission recognizes that certain practices, such as joint transport of input materials or sharing of aggregate supply gap information, do not raise competition concerns in any circumstances, provided that they are subject to sufficient safeguards.
However, the adaptation of production, stock management, and distribution may require exchanges of commercially sensitive information and certain coordination which, in normal circumstances, is problematic under the EU competition rules. Nevertheless, in the current exceptional circumstances, such measures would not be problematic under the EU competition rules or – in view of the emergency situation and temporary nature – they would not give rise to an enforcement priority for the Commission, to the extent that they are:
- designed and objectively necessary to actually increase output in the most efficient way to address or avoid a shortage of supply of essential products or services, such as those that are used to treat COVID-19 patients
- temporary in nature, i.e. that they last only as long there is a risk of shortage or in any event are limited to the duration of the COVID-19 outbreak
- not exceeding what is strictly necessary to achieve the objective of addressing or avoiding the shortage of supply.
Undertakings should document all exchanges and agreements between them and make them available to the Commission on request.
An exceptional procedure to obtain ad hoc guidance on specific cooperation projects
The Commission will continue to provide guidance to undertakings and trade associations with respect to specific cooperation initiatives.
Undertakings should write to a dedicated mailbox: COMP-COVID-ANTITRUST@ec.europa.eu to seek informal guidance on specific initiatives.
On 8 April 2020, the Commission issued a first guidance to Medicines for Europe, a trade association representing the European generic, biosimilar and pharmaceutical industries. The guidance addresses a specific voluntary cooperation project among pharmaceutical producers aimed at avoiding shortages of critical hospital medicines for the treatment of COVID-19 patients.
Application of the Framework
The Commission applies the Framework as of 8 April 2020 and it will remain applicable until withdrawn by the Commission once it considers that the underlying exceptional circumstances are no longer present.