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Andrea L. Hamilton draws on experience from both sides of the Atlantic and focuses her practice on EU and international merger control investigations as well as non-merger conduct investigations and antitrust litigation. She regularly represents clients before the European Commission, European courts and national competition authorities and also coordinates global investigations. Read Andrea Hamilton's full bio.

Amid the economic shocks caused by the Coronavirus (COVID-19) crisis, many industries are facing reduced demand for their products and services. Other industries—notably healthcare and food—are adjusting rapidly to expanding demand requirements and changing consumption patterns due to large-scale population confinement in several countries. Significant over- or under-capacity can create incentives, or even the necessity, to collaborate in ways that may push the limits of antitrust and competition rules.

On 23 March 2020, the European Competition Network (ECN) took unprecedented action. ECN, the network of competition enforcement authorities in the European Union, issued a joint statement announcing that its members will not actively intervene against “necessary and temporary” measures, including cooperation among competitors, in order to avoid a “shortage of supply.” At the same time, the ECN cautioned that its members would actively intervene against any measures taken by companies to limit the supply or charge excessive prices for critical products, such as masks or hand sanitising gel. This joint statement followed steps taken by several competition authorities in Europe to signal relaxed antitrust treatment of certain types of collaboration.

This article provides an overview of how companies can navigate these rapidly evolving developments in line with EU competition law. In brief, competition rules still apply, but are sufficiently flexible to allow critical industry adjustments during economic shocks that cannot be addressed in the short term by market forces, which are currently in turmoil.


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In the midst of the ongoing global effort to mitigate the effects of COVID-19, the Directorate-General for Competition (DG Competition) of the European Commission (EC) and the EU courts are taking measures to prevent the spread of the virus among individuals whilst at the same time seeking to ensure that the EU economy remains as stable as possible. The situation remains highly fluid for the foreseeable future. Companies are therefore urged to stay abreast of the continually changing measures being taken.

WHAT HAPPENED

EC Staff working on “non-essential” projects are working remotely from home. However, officials who hold “critical” functions, such as the Commissioner, the Director-General and Heads of Unit, will generally be present at DG Competition, although working on a shift basis. In-person meetings will be replaced by video conferences going forward. DG Competition staff who are dealing with the provision of State aid exemptions during the crisis are being considered “critical”.


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Pursuant to the EU merger control rules, a transaction that falls within the purview of the EU Merger Regulation (EUMR) must be notified to the European Commission (Commission) in advance (Article 4(1) EUMR), and must not be implemented until cleared by the Commission, known as the “standstill” obligation (Article 7[1] EUMR). A principal rationale behind the standstill obligation is to prevent the potentially negative impact of transactions on the market, pending the outcome of the Commission’s investigation.

While the standstill obligation represents a clear-cut rule, it can often be a significant challenge for businesses to apply in practice. Failure to get it right, however, can result in draconian penalties. Indeed, the Commission’s recent €124.5 million fine on Altice, which comes in the wake of a spate of enforcement actions in this arena, bears testimony to an increasingly hard stance against companies flouting the notification requirement/standstill obligation.
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At the one year anniversary of the Trump administration, antitrust merger enforcement remains similar to the Obama administration, but it is still early to judge given the delays in antitrust appointments and given the DOJ’s lawsuit against the vertical AT&T/Time Warner transaction, the first vertical merger litigation in decades.  Below are some of the recent

The Commission’s EUR 110 million fine on Facebook for breach of its procedural obligations under the EU merger control rules underscores the need to submit full, accurate and reliable information during the Commission’s merger control review process. An intentional or negligent failure to do so will lead to draconian fines—even where the provision of incorrect or misleading information does not have an impact on the ultimate outcome of the Commission’s decision.
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European Commissioner of Competition Margrethe Vestager made news when she announced that the European Commission had launched a new IT system enabling individuals to anonymously report cartel activity. In parallel, several EU Member States have–in recent weeks–highlighted the role of individual informants in their own enforcement efforts. Taken together, these developments show that the stakes of effective and meaningful antitrust compliance continue to rise, as individuals have more avenues to report anticompetitive conduct.

Speaking in Berlin on March 16, 2017, Commissioner Vestager stated, “We’ve discovered a lot of cartels thanks to leniency programs […] But we don’t just rely on leniency. We pay attention to other methods as well. And that includes encouraging individuals to come forward, when their conscience is troubled by the information that they have about a cartel. That’s why we recently launched a new IT system to help people tell us anonymously about cartels. The system means that we can communicate both ways with them without risking their anonymity while we gather information.”

Commissioner Vestager noted that the European Commission’s new system is modelled on a system implemented by the German Federal Cartel Office (FCO) in 2012. Notably, the FCO itself published a brochure in late February 2017 titled “Effective Cartel Enforcement” highlighting, among other things, the success of its whistleblowing program. The FCO noted that its system is accessible from its website and “guarantees the anonymity of informers while still allowing for continual reciprocal communication with the investigative staff [at the FCO] via a secure electronic mailbox.” Between June 2012 and December 2016, the FCO reports receiving 1,420 tips, “some of which” have led to proceedings resulting in fines.


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Transactions that meet the Hart-Scott-Rodino thresholds for notification must be reported to the Federal Trade Commission (“FTC”) and Department of Justice. Where a notified transaction raises competition concerns, the reviewing agency may decide to launch an in-depth investigation and request additional information from the merging parties, known as a “Second Request,” which can take several

McDermott has published an EU Competition Annual Review for 2015. This 87 page booklet will help General Counsel and their teams focus on the most essential EU competition updates for 2015. Beyond being used to understand recent developments, this booklet is a great reference when dealing with complex issues of EU competition law.

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On 1 October 2015 the UK Consumer Rights Act 2015 (CRA 2015) entered into force, bringing with it a raft of changes pertaining to consumer protection law and competition law litigation. These changes were discussed in an article featured in our most recent issue of our flagship publication, International News: Focus on Tax (Issue 3