Supervisors info:
Μικρουλέα Αλεξάνδρα, Αναπληρώτρια Καθηγήτρια, Τμήμα Νομικής, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών
Κινινή Ευθυμία, Επίκουρη Καθηγήτρια, Τμήμα Νομικής, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών
Μαστρομανώλης Εμμανουήλ, Επίκουρος Καθηγητής, Τμήμα Νομικής, Εθνικό και Καποδιστριακό Πανεπιστήμιο Αθηνών
Summary:
The aim of this thesis is to investigate the impact of COVID-19 on competition law enforcement and analyze the responses of competition law authorities to the emergency situation that has arisen. The main focus will be on cooperation between companies, the abusive excessive pricing, the merger control, the screening of foreign direct investments, the control of state aids and the advocacy function.
Companies should be aware that the competition law authorities will not allow crisis to be used as a cover to violate competition law cartelizing and abusing their dominant position, and that competition law enforcement remains strong even in these difficult times. Of course, they have made the necessary adjustments so that competition law helps to mitigate the effects of the pandemic and does not prevent the economic recovery in the long run.
First of all, related to cooperation between undertakings, it should be emphasized that Article 101 par. 1 and par. 3 TFEU will continue to apply, as in force. However, due to emergency conditions, companies may need to cooperate in order to address or mitigate the effects of the crisis to protect the public interest. At the same time, in order to increase legal certainty, the Commission can provide to companies, after request, ad hoc comfort letters. But, we can’t expect the same lenient position to crisis cartels, unless they are exceptional cases and the string conditions are met.
At this time, competition law authorities deal with another major antitrust issue, such as overcharging and consumer’s exploitation for the products that are directly related to the treatment of Covid-19. It is suggested using Article 102(a) TFEU (and/ or its national equivalents), that prohibits the abuse of a dominant position through excessive pricing, and to companies that have gained temporary market power due to pandemic, with the necessary changes in assessing the dominant position. On the other hand, in jurisdictions that the excessive pricing is not prosecuted under competition law, such as in USA, Canada and Australia, the price-gouging law is used. Although, if anyone of the above mentioned tools are effective, governments regulate prices to address the short-term failure of markets to offer a sufficient quantity of products at competitive prices. But this is a choice with many risks, because it is a strong intervention on the market.
In addition, related to the merger control, the competition law authorities have made some procedural changes due to the circumstances, without remove the notification and standstill obligation. Only in extremely urgent cases, the companies can request a waiver of the standstill obligation. On the contrary, the competition law authorities have not changed the legal standard for the substantial review of mergers. However, when they analyze the long-term effects of a merger on competition, they have to consider the current large economic uncertainty and that markets are changing rapidly. Despite the political pressures, the competition law authorities must refrain from public interest and industrial policy considerations that have an objective to create european champions, because they maybe have a negative impact on consumer welfare. Moreover, when the competition law authorities assess the conditions of failing firm defence, their control should be the same, regardless of the prevailing financial situation, and not lenient due to the economic downturn. In case of competition concerns arise, competition law authorities recommend the use of structural and/or behavioral remedies, which will be even more difficult to designed and enforced during the pandemic.
Furthermore, related to the control of state aid, the governments should provide financial support to the companies that are facing financial problems due to the pandemic and were creditworthy before the outbreak of the disease, and not to companies that were already in financial distress. At the same time, special provisions for the entry, remuneration and exit of the states from the equity of the companies that are recapitalized with state capitals and are lent on favorable terms, and provisions for their governance have adopted in order these companies do not be "nationalized" and the fair competition will maintain in the internal market.
Finally, the advocacy function of competition law authorities will play a very important role providing guidelines on government procurement procedures that can be used to purchase the necessary goods and services that related to pandemic COVID-19, and during the adoption of emergency measures, and cooperating with other government authorities to create a competitive environment without distortions.
Keywords:
covid-19, competition law, cooperation among competitors, excessive pricing, mergers, foreign direct investmants, state aid, advocacy
