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Antitrust: More Flexible Enforcement

Maria Jaspers, head of unit for antitrust case support and policy, gave the following key messages:

  • The absence of legal deadlines creates certain flexibility with regard to time-tables in pending investigations;
  • The crisis may have an influence on pending policy reviews (including the vertical and horizontal block exemption regulations);
  • Several actions have been put into place: these measures include the European Competition Network’s (the “ECN”) joint statement of 23 March 2020, indicating that the Commission (and the competition authorities of the Member States) will not actively intervene against necessary and temporary measures between businesses aimed to avoid a shortage of supply;
  • She pointed to the information on DG COMP’s website titled “Antitrust Rules and Coronavirus” providing dedicated guidance to businesses. Additionally, DG COMP has set up a dedicated mailbox that can be used to seek informal guidance on specific initiatives;
  • She recalled that, on 8 April 2020, the Commission published a “Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak” (the “Temporary Framework”). Read more on the Temporary Framework in this blogpost. Rainer Becker, head of unit in antitrust for pharma and health services added that DG COMP is vigilantly monitoring the markets to ensure that there are no breaches on the back of the crisis and that DG COMP will continue to progress opened proceedings, including by assessing complaints and market information. However, he indicated that competition rules may in certain circumstances be applied in a more flexible manner (read more on the flexible application of competition law rules here).

Mergers: Continued Merger Control Enforcement with Several Challenges

Jose-Maria Carpi Badia, head of unit for mergers case support and policy, gave the following key messages:

  • Due to the COVID-19 crisis the merger units are facing several challenges. This includes the timing of notifications, the carrying out of market investigations, the market testing of remedies, the provision of access to file in phase II cases, and the organisation of State of Play and other meetings. Also, the likely impact of COVID-19 on the economy affects the forward-looking assessment of mergers, and the situation more generally influences the ability to meet legal deadlines;
  • It is difficult in particular to collect information from third parties, and the Commission is facing limitations in terms of access to information and databases as well as in terms of information exchanges following the remote working measures taken by the Commission and the private sector;
  • There is a continuously high level of merger control activity at DG COMP. A comparison between the influx of notifications during a three week period in March and April 2020 and the influx during the same time period in 2019 indicates that there is no chilling effect on the number of notifications, despite DG COMP’s effort to delay notifications;
  • DG COMP will follow the strict merger procedure as set out by the EU Merger Regulation, and it will ensure the respect of the parties’ rights of defence as well as of third parties’ procedural rights. He said that the EU Merger Regulation is flexible enough to take account of unanticipated developments over the course of a review and indicated that DG COMP will closely monitor the situation and provide updated information as the situation evolves.

State Aid: Coordination of National COVID-19 State Aid Measures

Karl Soukup, director at the State aid Directorate for general scrutiny and enforcement, emphasized that the Commission acted quickly to establish specific State aid rules to respond to the crisis and also put in place flexible internal rules to allow for a speedy assessment and approval of notified measures.

He observed that the Commission adopted a Temporary Framework concerning national measures aiming to support the economy in the current COVID-19 crisis on 19 March 2020. This Temporary Framework, as amended on 3 April 2020, will be in place until the end of December 2020 and is applicable to all sectors and companies except those that were already in difficulty before 31 December 2019. For more information see our previous blogpost.

Photo of Johan Ysewyn Johan Ysewyn

Johan Ysewyn advises on all aspects of EC, international and Belgian antitrust law, including merger control, compliance, cartel and leniency issues and abuse of dominance cases.  He acts as the head of the firm’s EU Competition group, working from our Brussels and London…

Johan Ysewyn advises on all aspects of EC, international and Belgian antitrust law, including merger control, compliance, cartel and leniency issues and abuse of dominance cases.  He acts as the head of the firm’s EU Competition group, working from our Brussels and London offices.

Mr. Ysewyn’s practice has a strong focus on global and European cartel investigations and he has represented companies from a range of sectors.  He is also one of the leading experts on EU state aid issues, working both for beneficiaries and governments.

He regularly speaks at conferences such as GCR, IBC, IBA, Chatham House and other industry events and has written for numerous legal publications.  He is recognised as a leading competition lawyer by Chambers, Legal 500 and other leading industry guides.  Mr. Ysewyn has acted as a non-governmental advisor to the International Competition Network (ICN).

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