As we announced in our previous Competition Flash, the activity of both the French Competition Authority and the European Commission is strongly impacted by the recent measures to prevent the spread of COVID-19.
Nevertheless, competition law is fully applicable in times of crisis, and competition authorities closely scrutinize business activities. In the past, the French Competition Authority stressed on numerous occasions that crisis situations could not have the effect of bypassing the enforcement of competition: companies cannot respond to the economic crisis through anticompetitive agreements or by abusing their dominant position.
In the current context of sanitary crisis, the French Competition Authority (along with other competition authorities in Europe) has therefore announced that it is closely monitoring the prices of certain types of goods, particularly on online purchasing and delivery platforms. Such monitoring is carried out jointly with the DGCCRF, with the aim in particular of detecting the implementation of collusive practices between operators aimed at artificially increasing prices.
Taking advantage of the health emergency resulting from the spread of a virus could even justify increasing the amount of the penalties imposed for anticompetitive practices, with a view to taking into account the particular gravity of such infringement. The French Competition Authority already stressed the particular seriousness of the breach aimed at profiting “from the health emergency linked to the rapid spread of the disease and the absence of a call for tenders to knowingly mislead the public purchaser” (see in particular Decision No. 18-D-15 of 26 July 2018 regarding practices implemented in the distribution of veterinary medicinal products sector).
Economic operators must therefore be particularly vigilant as regards compliance with competition law while implementing certain measures in the context of this major health crisis: price increases, partnerships with competitors, exchanges of commercially sensitive information, market sharing, etc.
As we face this major crisis, Baker McKenzie’s teams remain fully mobilized to answer your questions.