The famous and influential German Supreme Court Justice Ernst-Wolfgang B\u00f6ckenf\u00f6rde spent a good amount of his academic work on the question how legal systems should and can deal with cases of ultimate emergency (the infamous \u201cAusnahmezustand<\/em>\u201d). Unlike others B\u00f6ckenf\u00f6rde took the clear position that even in the Ausnahmezustand<\/em> there is no \u201ccarte blanche\u201d for arbitrary action that is no longer bound by legal principle. While, of course, B\u00f6ckenf\u00f6rde was not so much concerned with the nitty-gritty lowlands of antitrust his basic insight that extreme situations impact every part of the legal order fundamentally is \u2013 as we must currently witness in this severe crisis \u2013 also true for our field of interest.\u00a0 <\/p>\n\n\n\n Within the strictly time-bound decision frame-work under merger\ncontrol rules, authorities and notifying parties are confronted with the\nprocedural implications of the current pandemic: How to keep the short and\nstrict timelines in the face of severe constraints of day-to-day work? Many authorities,\ne.g. the German\nFederal Cartel Office<\/a> or the French\nAutorit\u00e9 de la Concurrence<\/a>, have reacted by trying to reduce the amount of\nnewly notified transactions. They encourage undertakings to rethink whether\ntheir notification needs to be submitted now or can wait. While this might be a\npragmatic solution it is not a legal one: Under most merger control regimes the\nclock for the authorities starts ticking once a complete notification is\nformally filed. Antitrust authorities usually have \u2013 from a purely legal\nperspective \u2013 no legal means to stop undertakings from filing a transaction and\nthereby triggering the deadline for clearance. Then again, try to find a lawyer\nwho has filed a notification although the authority \u201cdiscouraged\u201d him from\ndoing so. If you find him or her \u2013 don\u2019t hire him\/her! <\/p>\n\n\n\n Even more tricky is the question of how to deal with coordination\nbetween independent undertakings in times of an existential crisis. What is the\nright balance that needs to be struck between competition and attempts to\nmaster repercussions of a unique threat for a branch of the economy? Take the\nfollowing example: Two arch-rivals in the airline industry coordinate their\nroutes. Five weeks ago this would have been a clear cut case of an infringement\nof the principles of Article 101 TFEU or comparable national provisions. Nowadays\nthe Norwegian\nGovernment<\/a> takes the view that at least for period of three months it will\nbe allowed for airlines to coordinate their behaviour. <\/p>\n\n\n\n In the same vein is the reported\npractice<\/a> of retailers to exchange information and allocate particularly\nneedy customers among each other to ensure that deliveries can be made in time.\nReportedly<\/a>,\nlarge retailers in the UK have asked to waive competition rules to allow them\nto coordinate their behaviour in times of crisis. Just recently, Andreas\nMundt<\/a> \u2013 head of the German Federal Cartel Office \u2013 is quoted as saying: \u201cCompetition\nlaw permits extensive cooperation between companies if there are good reasons\nfor this \u2013 which is the case in the current situation\u201d. Similarly, the Greek\ncompetition authority<\/a> notes that it will not take action against practices\nwhich relate to the imposition of maximum resale prices or recommended prices\non supply contracts and distribution agreements.<\/p>\n\n\n\n Measures to somehow soften antitrust laws are not totally\nunprecedented and some have at least been discussed in the light of potential\npanics in the UK in the wake of Brexit. <\/p>\n\n\n\n One actual example prior to Brexit was the\npermission<\/a> of communication between fuel companies in the UK to allocate\nsupplies, including the development of a voluntary protocol between industry\nassociations and companies to improve fuel distribution and minimise disruption\nwhen panic buying of petrol led to fuel shortages in 2012. <\/p>\n\n\n\n However, competition law authorities throughout the world, will certainly\nkeep in mind that relaxing the usual competition standards bears also risks. In particular in times like these, customers\nare vulnerable and \u2013 in fear of empty store shelves \u2013 willing to pay\nexcessively high prices (even for things like toilet paper). <\/p>\n\n\n\n The only institution that can save\nthem from exploitation is functioning competition. Consequently many competition\nauthorities, eg the Portuguese watchdog<\/a>, have already warned companies not\nto abuse the current situation. Likewise the Greek regulator<\/a> stresses that it will continue to\nexamine hardcore vertical restraints which are brought to its attention, such\nas resale price maintenance (establishing a fixed or minimum resale price or\nlevel), and that it is prepared to impose fines on undertakings that apply such\npractices.<\/p>\n\n\n\n Also the past shows that \u2013 even in\ndifficult times \u2013 competition law authorities are not willing to give companies\ncarte blanche. <\/p>\n\n\n\n One example is related to the 11 September\nattacks in 2001. The industry then faced serious issues around maintaining\ninsurance for airlines. The insurance structures that were then set up by\nvarious industry players were potentially in breach of competition law. The EU Commission<\/a> opened investigations and closed them\nonly after concessions were offered by the undertakings. <\/p>\n\n\n\n Rumour has it that the EU Commission is already inquiring which\nnational authority has taken steps to relax the usual competition law\nstandards.<\/p>\n\n\n\n The antitrust enforcers, therefore, seem to keep B\u00f6ckenf\u00f6rde\u2019s credo\nin mind \u2013 no \u201ccarte blanche\u201d in times of crisis.<\/p>\n\n\n\n <\/p>\n<\/div><\/div>\n\n\n\n Dr Marcel Nuys is partner, Dr Florian Huerkamp is counsel with Herbert Smith Freehills LLP. <\/em> <\/p>\n","protected":false},"excerpt":{"rendered":" The virus challenges everything \u2013 competition law is no exception to that rule. Marcel Nuys and Florian Huerkamp give a first account of the situation in antitrust law in our blog. And while nothing is safe these days, one thing is: This is not the last time we have to deal with competition law in times of the Covid-crisis. The famous and influential German Supreme Court Justice Ernst-Wolfgang B\u00f6ckenf\u00f6rde spent a good amount of his academic work on the question…<\/p>\nMerger Control in times of Covid<\/h2>\n\n\n\n
A \u201cchance\u201d for closer cooperation between\ncompetitors?<\/h2>\n\n\n\n
Softened antitrust rules during a crisis \u2013\nunheard of?<\/h2>\n\n\n\n
Crisis \u2013 a time to stay vigilant <\/h2>\n\n\n\n
![\"\"](\"https:\/\/www.d-kart.de\/wp-content\/uploads\/2020\/03\/Marcel.Nuys@hsf.com_LGS.jpg\")
<\/figure><\/div>\n<\/div><\/div>\n\n\n\n![\"\"](\"https:\/\/www.d-kart.de\/wp-content\/uploads\/2020\/03\/florian.huerkamp@hsf.com_LGS.jpg\")
<\/figure><\/div>\n\n\n\n