Exiting lockdown: beware the antitrust risks
In response to the COVID-19 lockdown, certain limited forms of cooperation which would normally infringe competition law have been permitted for businesses such as supermarkets. But these are typically very narrow exceptions and as we come out of lockdown, businesses should not assume that they are now free to cooperate on a much wider scale than before the onset of the pandemic – or that antitrust regulators will turn a blind eye.
As explored in our previous article on COVID-19 and competition law, antitrust regulators both in the UK and abroad have been quick to respond to the unique challenges posed by COVID-19. They have made clear that the competition laws will be relaxed or otherwise not enforced against industry-wide cooperation designed to deal with the immediate impact of the crisis. In the UK, this has resulted in temporary COVID-19 guidance and certain sector-specific legislation which allows competitors to cooperate to a greater degree than would normally be possible.
But this guidance and legislation is narrowly defined primarily by reference to temporary cooperation strictly necessary to secure the supply of scarce and/or essential goods and services upon the onset of the COVID-19 crisis. Any other cooperation outside this narrow remit will not necessarily be covered by the CMA's reassurances, even if it is well-intentioned. Indeed, the UK Competition and Markets Authority ("CMA") has made clear that it will actively pursue enforcement action against firms deemed to be using COVID-19 as a 'cover' for broader commercial cooperation.
"In most cases, competition law will continue to apply as normal regardless of COVID-19 – both during and immediately after the immediate impact of the pandemic."