Supply Management published an Oct. 9, 2020, article by McGuireWoods London partner Matthew Hall titled “How to navigate competition law and cooperation during the pandemic.” While competition law still applies, governmental authorities are making allowances to keep necessary supplies and services available during the crisis.
“Authorities worldwide, including those in the EU and UK, have been keen to ensure competition law will not become part of the COVID-19 problem, but that it will be part of the solution,” Hall wrote. “They have made it clear that necessary, short-term cooperation is acceptable.”
In the absence of clear guidance, however, companies rely largely on self-assessments to determine the legality of cooperative arrangements with competitors, and the penalties for being wrong can be significant, he said.
“The legality of each of these arrangements depends on the particular facts, including the issue which is being addressed, the depth of the cooperation, whether and to what extent competitively sensitive information (CSI) is exchanged, the market positions of the parties, the impact on other competitors and trading parties and the duration of the arrangement,” he wrote. “It’s important to realise that direct or indirect exchange with or provision of CSI to a competitor — even if one-way and on a one-off basis — can on its own give rise to competition law concerns.”
Noting the evolving nature of the pandemic and that legal boundaries will change to adapt, he concluded: “Companies must make sure that their compliance arrangements take into account the background, allow for suitable monitoring of behaviour and provide amended guidance as matters progress.”