Matthew Hall Examines Pandemic’s Effect on Antitrust Regulation

April 7, 2020

On March 19, 2020, the Concurrences bulletin ran an article written by McGuireWoods London partner 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 pandemic.

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.