March 19, 2020, the Concurrences bulletin ran an article written by McGuireWoods
Matthew Hall on how governments and antitrust regulators in the EU and UK are flexing
antitrust laws in response to challenges brought on by the COVID-19
In the article, Hall discussed how typical antitrust/competition law
penalties and claims may be counterproductive in light of current
exceptional circumstances and how companies that need to cooperate with
competitors, such as supermarket retailers, now have the opportunity to do
so, within reason.
The UK government announced that it will waive UK competition law for a
limited period to allow supermarket retailers to share data with each other
on stock levels, cooperate to keep shops open, or share distribution depots
and delivery vans. The waiver will also allow retailers to pool staff to
help meet demand. Further, retailers will be able to agree on common
specifications for products to bolster food production.
“The waiver will not allow any activity that does not meet this
requirement, so supermarkets have been warned not to go too far and will
still need to be careful,” wrote Hall.
Along with this development, Hall noted the backing of this statutory
change by the Competition and Markets Authority (CMA), the UK antitrust
regulator. The CMA announced that where agreements are not covered by that
formal legal relaxation (i.e., in all other sectors of the economy), it may
turn a blind eye when actions are deemed necessary to protect consumers.
Despite these recent developments, Hall explained that the risk of
regulatory enforcement remains and private third parties can challenge
behavior through the courts.
“Antitrust law has therefore been relaxed in some circumstances, but risks
remain and competitors need to tread carefully before cooperating or
exchanging information in the EU or UK,” Hall cautioned.