Abstract
The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current COVID-19 crisis and allows for the inclusion of public or non-economic interests, particularly with regard to the application of Article 101 of the Treaty of the Functioning of the European Union. With a view to answering this question, the temporary framework that has been adopted because of the pandemic will be assessed in the light of the framework for the application of Article 101 TFEU. Then the actions of competition authorities undertaken EU-wide will be analysed against the background of the current debate on the goals of EU competition law.
Highlights
The COVID-19 outbreak triggered an unprecedented crisis
Similar conditions were included in the Competition & Markets Authority (CMA) Guidelines which states that measures taken by businesses should be:48 ‘(1) appropriate and necessary in order to avoid a shortage, or ensure security, of supply; (2) are clearly in the public interest; (3) contribute to the benefit or wellbeing of consumers; (4) deal with critical issues that arise as a result of the coronavirus pandemic; and (5) are temporary.’[49]
The above analysis proves that the pandemic strongly influenced the way in which the interpretation of the scope of application of Article 101 TFEU is carried
Summary
The COVID-19 outbreak triggered an unprecedented crisis. It was a crash or resilience test for the normative systems that regulate health protection, public administration and market regulation, including EU competition law. Similar conditions were included in the Competition & Markets Authority (CMA) Guidelines which states that measures taken by businesses should be:48 ‘(1) appropriate and necessary in order to avoid a shortage, or ensure security, of supply; (2) are clearly in the public interest; (3) contribute to the benefit or wellbeing of consumers; (4) deal with critical issues that arise as a result of the coronavirus pandemic; and (5) are temporary.’[49] These conditions link the objective, which is avoidance of shortages of supply, with necessity and proportionality requirements which show a rule of reason type of approach referring to the condition of inherency as indicated in Wouters or Meca Medina.[50,51] In spite of the temporary character (directly related to the pandemic), it is an interesting indication of how non-economic objectives could in practice be included in the Article 101 framework. The overview of the TFC could indicate that authorities followed the Wouters approach and the application of rule of reason in case of a contradiction between public interest and the application of competition law
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