The Portuguese Competition Authority follows the European Competition Network and announces a tolerance policy for cooperation between undertakings during the COVID-19 crisis

Coronavirus | Portugal- Impact on the enforcement of competition law*

Do national and EU rules on competition law remain in force, during the period of crisis caused by the COVID-19 outbreak?

  • Competition law rules remain in force, there have been no national or EU legislative measure ordering their suspension. Some Member States have chosen to introduce flexibility in the enforcement of competition rules. The United Kingdom, in particular, has announced that it will facilitate the necessary cooperation between supermarkets and other retailers regarding the supply of essential products; and Norway enacted a three months’ exemption on the enforcement of competition rules to undertakings in the transport sector.With regards to the enforcement, note the Joint Statement of the European Competition Network (ECN), on the basis of which Autoridade da Concorrência (Competition Authority) has:
    • Announced a tolerance policy with regard to the cooperation between undertakings aimed at ensuring the supply and distribution of products of scarce availability to all consumers, provided that the necessary and temporary measures are implemented in such a way as to prevent the shortage of supply
    • Displayed availability to moderate the principle of self-assessment and undertaking’s responsibility, making itself available to provide them with informal guidelines (typically, undertakings set the forms of cooperation at their own risk)
    • Acknowledged that in a moment such as the one we are currently experiencing it is of the utmost urgency to ensure products deemed essential for the protection of consumers’ health remain available at competitive prices (ex. face masks, hand sanitizer and medical devices)
    • Warned, in line with the other European competition authorities, that it shall not hesitate to take action against undertakings taking advantage of the current circumstances through cartelization or abuse of their dominant position

What were the instructions of the competition authorities of the EU State Members on their activities during this crisis?

  • Further to joining the ECN Statement, some national competition authorities have already issued statements or information with connection to their activities and merger control, in particular:
    • The European Commission encourages the parties to postpone the notification for merger when possible, giving preference to delivery by electronic means
    • The Autoridade da Concerrência (AdC) (Competition Authority) invites all interested parties to resort to the available electronic channels, such as Portal de Denúncias, Sistema de Notificação Eletrónica (SNEOC), among others available on AdC website, stating that the managerial staff is working remotely;

In line with the Joint Statement, some national authorities have noted that they will be particularly alert to practices exploiting the situation of crisis and the consumers.

Are there already ongoing investigations on restrictive practices in this context?

  • The Italian competition authority launched two investigations against Amazon and Ebay related to practices in the marketing of personal protection products, in particular with regard to the misleading references to the protection against or cure of COVID-19 and price increases.In the USA were announced investigations related to price increases or other restrictive or unfair practices with regard to products related to COVID-19 outbreak.

* Article published in Lexology (click here), republished in e-Competitions with the courtesy of author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships with a party or related third party. Article will need e-Competitions Board approval before publication.

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Nuno Ruiz, Ricardo Bordalo Junqueiro, The Portuguese Competition Authority follows the European Competition Network and announces a tolerance policy for cooperation between undertakings during the COVID-19 crisis, 23 March 2020, e-Competitions Competition Law & Covid-19, Art. N° 94144

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