I) Introduction
The coronavirus pandemic has and will have a huge impact on our economy. Undoubtedly, we face the worst crisis in our recent history. A major consequence is serious financial distress for a myriad of undertakings. A phenomenal number of companies are already close to bankruptcy. It is too early to accurately assess the economic damage caused by the Corona crisis. Nevertheless, competition authorities around the world have reacted swiftly to deal with this unprecedented challenge [1]. The crisis affects drastically both consumers and companies. On the one hand, consumers are prisoners of the containment imposed by their Government. They lost their freedom of choice and have to shop at the stores closest to their homes (pharmacies, food retail stores etc.). Thus, a higher price can be charged due to the inelastic demand from consumers. On the other hand, some companies no longer have consumers while others are seeing the demand for their products and services soar. This situation raises serious competition concerns for competition authorities. The main issue is whether competition law should apply or not in pandemic crisis. Most competition authorities answered yes. For example, the European Competition Network highlighted in a joint communication that competition law « remains relevant also in a period when companies and the economy as a whole suffer from crisis conditions» [2] . In France, the Autorité de la concurrence (Autorité) takes competition issues particularly seriously. Following a report made by a Guianese company to the Autorité on 30 March 2020, the Autorité has opened an initial investigation into exclusive import practices likely to be implemented by companies active in the supply for hospitals of respiratory systems and products intented for patients suffering from respiratory disorders. These respiratory devices are particularly used for patients suffering from Covid-19. In this case, the Autorité suspected a company having recently entrusted the import of its medical products in French Guiana, Guadeloupe and Martinique to the only company located in the United States. Such behavior could have effectively prevented any other alternative from supplying local distributors. On 6 April [3], the Autorité has announced closing its initial investigation and taking note of the decision of the company to clarify the conditions for the distribution of its products in overseas territories in order to strengthen competition. The Autorité indicated its intention to take care that no company can abuse its market power or agree with other companies to the detriment of consumers and the community. What about the New Caledonian Competition Authority?
II) Current reaction
The New Caledonian Competition Authority (NCCA) is a new entrant into the ranks of competition authorities [4]. The Authority was installed in March 2018 [5] on the « Caillou » and celebrated its two years of existence only a few weeks ago. Despite its recent creation, the Authority already has a substantial record of activity. The NCCA has delivered many opinions and examined several merger cases. Recently, the NCCA has opened a sector inquiry in the airline market [6]. Last year, and for the first time in its history, it has fined companies for engaging in exclusive import practices prohibited under competition law in New Caledonia [7] . In its announcement on its priorities for 2020 [8] , the Authority stressed that it will focus its control on the risk of cartels in public procurement. Will these priorities be compromised by the ongoing Covid-19 pandemic? In a press release dated 19 March, the NCCA responded clearly in the negative. The NCCA considers that weakening competition law enforcement is not the way to go. In contrast, the NCCA will pay more attention to the implementation of anticompetitive behaviours. It declares that « in this period of collective efforts, the NCCA will be particularly vigilant in detecting and then punishing anti-competitive practices carried out by companies that would exploit the current situation to the detriment of New Caledonia’s citizens and economy » [9] .
Does that mean that the authority will proceed in the same way as usual? Absolutely not. The NCCA is aware that adaptations have to be mad, due to the containment and the economic effects of the Covid-19 crisis. In this context, it will be more difficult to detect dubious practices in the market. The NCCA states that « given the exceptional situation in New Caledonia and throughout the world, the Authority will take into account any difficulties encountered by companies or third parties in responding to its requests. This may nevertheless have an impact on the time required for the investigation and hearing of cases ». In others words, the NCCA acknowledges, without labouring the point, that it will be difficult to respect the usual timeframes for the treatment of cases. Certainly, merger cases will have a lower priority than antitrust cases because, as the NCCA pointed out, « anticompetitive practices in this context will tend to worsen the situation of families and the economy and will therefore have to be heavily penalised ». For these reasons, the NCCA invites any person or company aware of possible anticompetitive practices to report them. An email address has been created to enable the investigation service to gather the first evidences and react promptly to carry out investigations.
III) What’s next ?
The NCCA is composed of a small team of rapporteurs with one rapporteur general supported by an assistant rapporteur general [10] . Therefore, it will not be easy to carry out investigations as quickly as in France. Indeed, the Autorité de la concurrence in France has several investigation services which work in close collaboration with DGCCRF agents. This is not the case in New Caledonia. That’s why, in the archipelago, it will need to make full use of all tools available to NCCA. For instance, leniency programmes will have to be promoted more than usual. Pursuant to article Lp. 464-2 of the Commercial Code, a company involved in a cartel but cooperating voluntarily with the NCCA by providing critical evidence receives in return immunity from, or a reduction in, fines for its involvement in the cartel. This negociated procedure, which has shown its efficacity in the European Union, could be a powerful instrument to detect anticompetitive practices during the Corona crisis.
The Authority could also be inspired by the French Competition Authority, which has decided to assist companies in the evaluation of their collaboration agreements. Given the size of the island, supply problems will certainly arise in New Caledonia. Consequently, intiatives such as collaborations between companies for manufacturing masks should not be discouraged. As in France, on an informal basis, the NCCA could secure certain agreements.
Finally, the NCCA must be very vigilant to prevent some profiteers from taking advantage off the Corona crisis to demand excessive prices for essential goods. Such behaviour could be qualified as an abuse of dominance.
IV) Conclusion
In New Caledonia, as elsewhere, competition law has not been temporarily shelved due to the Covid-19 crisis. The NCCA will ensure that products considered as essential remain available on the market at competitive prices. This position must be approved because, during this economic and health crisis, the first victims of anticompetitive practices will be the most vulnerable people in our society, such as low-income families and people suffering from severe diseases.
