Competition and Consumer Law

Alderman, Richard et al, 'Consumer Law and Policy Relating to Change of Circumstances Due to the COVID-19 Pandemic' (2020) 43(3) Journal of Consumer Policy 437-450
Abstract: An unprecedented number of consumer problems has been caused by the COVID-19 pandemic, not least with regard to refunds of prepayments and the ability of consumers to keep up their monthly payments under loan and rental agreements. Based on a notion of societal force majeure sketched in this paper, we propose guiding principles in respect of the introduction of moratoria on recurring payments, the use of refunds or vouchers in respect of prepayments, and associated enforcement challenges. This analysis draws on experiences around the globe.

Biondi, Andrea, 'Governing the Interregnum: State Aid Rules and the COVID -19 Crisis' (SSRN Scholarly Paper ID 3703095, 27 August 2020)
Abstract: This article focuses on the transformations and changes in the area of state aid control prompted by the COVID-19 pandemic. It attempts to provide a first assesment on the European Commission Temporary Framework on state aid measures to support the economy in the outbreak. It discusses whether the measures adopted have been effective and managed to guarantee on the one side the possibility of Member States to take swift and effective action as to ensure short and long term liquidity to undertakings affected by COVID 19 and on the other to preserve fair competition an respect of state aid rules control.

Bloomfield, Doni, 'Competition and Risk' (SSRN Scholarly Paper ID 3566661, 2 April 2020)
Abstract: Merger review in the United States has overlooked a significant competition harm: increasing risk. Mergers can increase both counterparty risk and systemic risk--the risk of idiosyncratic firm shocks harming trading partners and the national economy. There is now clear evidence that negative shocks to a firm can impose significant harm to that firm's trading partners, leading to national economic effects. And as the COVID-19 pandemic has shown all too clearly, how we structure our markets can, in a crisis, become a matter of life and death overnight. I argue that mergers that increase counterparty and systemic risk by harming the competitive process can be blocked as violations of the Clayton Act. Systemic and counterparty risk should therefore be treated like innovation in merger review as factors that can increase or decrease merger legality. I show when a merger is likely to change risk, to whom, and in what direction. Important factors include pre- and post-merger market power, counterparty exposure, and network centrality. When a merger increases risk because of a harm to competition, that increased risk is an antitrust harm under the consumer welfare standard and can therefore be used to condemn the merger. Moreover, the agencies' prosecutorial discretion allows them to consider risk harms in merger review even when such harms are not directly caused by reduced competition. To illustrate, I apply merger risk analysis to a large generic pharmaceuticals deal. I conclude with recommendations on how to incorporate risk analysis into merger review. Bringing risk analysis into merger review reveals otherwise invisible but significant merger harms and demonstrates that merger efficiencies have not just benefits but also serious costs. In an Appendix, I propose language for a new section in the Department of Justice and Federal Trade Commission's Horizontal Merger Guidelines.

Buccafusco, Christopher, Daniel J Hemel and Eric L Talley, 'Price Gouging in a Pandemic' (University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No 922, 1 January 2021)
Abstract: The ongoing COVID-19 pandemic has led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it has reawakened a debate about whether and how to regulate 'price gouging.' Animating this controversy is a longstanding conflict between laissez-faire economics (which champions price fluctuations as a means to allocate scarce goods) and perceived norms of consumer fairness (which are thought to cut strongly against sharp price hikes amid shortages). This article provides a new, empirically grounded perspective on the price gouging debate that challenges several aspects of conventional wisdom. We report results from a survey experiment administered to a large, nationally representative sample during the height of the pandemic's initial wave. We presented participants with a variety of vignettes involving price increases, eliciting their reactions along two dimensions: the degree of unfairness they perceived, and the legal response they favored. Overall, we find that participants are more tolerant of price increases than either the existing behavioral economics literature predicts or most state price gouging statutes countenance. But we also find that price fairness perceptions can be highly sensitive to context. For example, participants are much more tolerant of moderate price increases if they previously are asked to contemplate large price increases. Moreover, participants are substantially more willing to accept a price increase when it is accompanied by an apology and/or a public-minded rationale (such as supporting furloughed employees). We explore the implications of our findings for behavioral economics, pricing practices, and legal reform.

Carvalho, Jorge Morais and Sandra Passinhas, 'Consumer Law and COVID-19 in Portugal' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The periods of crisis have a negative impact on the level of consumer protection, with the emphasis on other objectives, in particular those linked to the functioning of the market. This text aims at demonstrating that. In Portugal, measures adopted to face the economic and social effects of COVID-19 can be characterised twofold: those that reduce the level of consumer protection and those that aim to protect particularly vulnerable consumers. Evidence will be given in the following fields: tourism (package travel, hotel or short-term accommodation bookings), services of general interest (specially, water, electricity, gas and telecommunications provision), credit agreements (both mortgage credit and consumer credit), electronic payments, sale of goods, and the price-reduction commercial practice of sales.

Chaiehloudj, Walid, 'The New Caledonian Competition Authority Announces Pursue Competition Law Enforcement in the Context of COVID-19 Pandemic' (2020) II e-Competitions Bulletin Article No 94154
Abstract: The coronavirus pandemic has and will have a huge impact on our economy. Undoubtedly, we face the worst crisis in our recent history. A major consequence is serious financial distress for a myriad of undertakings. A phenomenal number of companies are already close to bankruptcy. It is too early to accurately assess the economic damage caused by the Corona crisis. Nevertheless, competition authorities around the world have reacted swiftly to deal with this unprecedented challenge [1]. The crisis affects drastically both consumers and companies. On the one hand, consumers are prisoners of the containment imposed by their Government. They lost their freedom of choice and have to shop at the stores closest to their homes (pharmacies, food retail stores etc.). Thus, a higher price can be charged due to the inelastic demand from consumers. On the other hand, some companies no longer have consumers while others are seeing the demand for their products and services soar. This situation raises serious competition concerns for competition authorities. The main issue is whether competition law should apply or not in pandemic crisis. Most competition authorities answered yes.

Chakraborti, Rik and Gavin Roberts, 'Anti-Price Gouging Laws, Shortages, and COVID-19: Big Data Insights from Consumer Searches' (SSRN Scholarly Paper ID 3613726, 9 June 2020)
Abstract: Several states have laws that prohibit large increases in prices on consumer good, or 'price gouging,' during emergency situations like pandemics. We investigate the impact of such laws on online consumer behavior using data from Google Shopping Trends during the onset of the COVID-19 pandemic. We focus on hand sanitizer and toilet paper, two staples predominantly bought in-stores in regular times, which experienced substantial in-store shortages since the onset of the pandemic. We find robust evidence indicating anti-price gouging laws are associated with significant increases in online searches for hand sanitizer, and some evidence that these laws increase searches for toilet paper as well. These results imply the possibility that anti-price gouging laws lead to shortages for consumer staples during pandemics. Our results inform the ongoing and rigorous debate surrounding anti-price gouging laws and their potential effects during public health emergencies like COVID-19.

Clarke, Philip H, 'Prepayments, the ACL and the ASIC Act' (2020) 48(2) Australian Business Law Review 180-188
Abstract: COVID-19 has resulted in the cancellation or postponement of sporting and entertainment events and fixtures, the virtual cessation of domestic and international air travel, and the closure of schools and most entertainment, exercise and sporting venues. What are the rights under the Australian Consumer Law (ACL) of those who have prepaid to attend events, or receive services, such as these? A significant part of the answer can be found in s 36 of the ACL. This article outlines the operation of that provision and applies it to COVID-19 scenarios. It also highlights the value of the provision to online shoppers, who frequently make prepayments for the goods or services they seek, as a precedent for reforms to address the 'fees for no service' scandal highlighted by the 2019 Banking Royal Commission.

Coorey, Adrian, 'COVID-19 (Coronavirus): What Help, If Any, Can the Consumer Guarantees Have for a Consumer in Circumstances Where a Travel Ban Is in Effect?' (2020) 23(8/9) Inhouse Counsel 110-111
Abstract: A consumer may be wondering what rights they may have under the consumer guarantees regime in the 'Australian Consumer Law' (ACL) where the Australian Government has placed a travel ban on a particular flight or cruise that the consumer made a booking. Unfortunately, for most, the consumer guarantees do not appear to be of great assistance in such circumstances. However, a consumer may have, or is likely to have, other options for remedies outside the consumer guarantee regime. This paper will provide some general analysis on the three consumer guarantee provisions in relation to services, namely sections 60 (guarantee as to due care and skill), 61 (guarantee as to fitness for a particular purpose), and 62 (guarantee as to reasonable time for supply) in circumstances where a travel ban is in force. Of course, this analysis is not intended to be legal advice, and will not apply to every circumstance. When dealing with consumer guarantees, each case must be decided on their own facts.

Cordray, Richard, Diane E Thompson and Christopher Lewis Peterson, 'Consumer Financial Protection in the COVID-19 Crisis: An Emergency Agenda' (SSRN Scholarly Paper ID 3569357, 6 April 2020)
Abstract: The coronavirus pandemic is creating overwhelming needs, in three waves. First is the health crisis; second is the macroeconomic crisis created by the abrupt halt in much business activity; and now third is a consumer crisis, as households are faced with total or partial job loss, sharp income decline, and potential loss of health care. Millions of Americans are falling behind on their bills, including major obligations like mortgages, rent, car payments, and other forms of household debt. At the same time, they face a financial industry itself struggling to respond to the compounding crises and widespread confusion as to what the new rules of the road are as financial institutions, states, localities, and the federal government scramble to respond. The result is fertile ground for consumer scams. The authors call upon the Consumer Financial Protection Bureau to recognize and respond to this new consumer crisis, providing an action plan of more than a dozen practical steps that the CFPB can and must take immediately to prevent widespread consumer harm. The action plan starts with the most basic and essential step of collecting and disseminating timely and accurate information for both consumers and policymakers. The CFPB must address pressing consumer risks in four primary areas: foreclosure prevention, non-mortgage debt forbearance, oversight of debt collectors, and supervision of credit reporting companies. In each of these primary areas, and on all the issues discussed in this paper, the CFPB must use all of its authorities to ensure that crucial relief is delivered to distressed consumers.

'Coronavirus (COVID-19): Cancellation and Refund CMA August 202 Guidance' [2020] (September) Corporate Briefing 8-12
Abstract: Summarises the Competition and Markets Authority (CMA) guidance published 28 August 2020 on whether consumers who paid in advance for goods or services, affected by the coronavirus pandemic, can cancel and claim refunds. Considers holidays, gym memberships, the difference between lockdown laws and Government guidance, and variation of contract.

Costa-Cabral, Francisco et al, 'EU Competition Law and COVID-19' (TILEC Discussion Paper No DP2020-007, March 2020)
Abstract: This paper explores how EU competition law enforcement might be affected by the COVID-19 pandemic. Each section of this paper reviews how various components of EU competition law are impacted. The paper evaluates the state of play and, where relevant, it makes policy proposals for how competition law might develop. It suggests that the Commission's state aid policy is unprecedentedly lax but more tightening up might be welcomed to ensure state funds are not misspent. In the field of antitrust it recommends that competition authorities should be watchful of excessive prices and price discrimination, using interim measures more boldly. Collusion should remain an enforcement priority but a procedural pathway to review agreements that may be in the public interest is proposed, drawing on practices developed in the US in the aftermath of major natural disasters. In merger control, the Commission's strict interpretation of the failing firm defense is appropriate but, in general, a more skeptical attitude towards mergers may be warranted during this period. Advocacy plays a key role: competition agencies can both point to existing regulations that limit competition and monitor proposed emergency legislation that would harm competition for no good reason. :

Costa-Cabral, Francisco, 'Future-Mapping the Three Dimensions of EU Competition Law: Modernisation Now and After COVID-19' (TILEC Discussion Paper No DP 2020-011, 21 April 2020)

Abstract: EU competition law is traditionally understood in two-dimensions: judicial control and enforcement. This paper considers a third dimension: its normative concerns in the context of EU law. In mapping the future of these dimensions, the paper asks if the understanding behind the modernisation of the Commission's enforcement is still tenable. In relation to judicial control, the effects-based approach of modernisation has either been incorporated by the case law at the cost of its coherence or ignored. Regarding enforcement, modernisation has resulted in the Commission having to step outside its guidance and in multiple proposals to adjust competition rules. As for the normative dimension, modernisation's emphasis on consumer welfare has not prevented openness to broader concerns and setting this priority aside in reaction to COVID-19. The direction of modernisation will thus continue to raise judicial difficulties and, should it hamper enforcement, possibly lead to legislation that marginalises competition law. A better alternative would be, as was done for COVID-19, to reinforce the normative connection with the rest of EU law.

Cseres, Kati and Agustin Reyna, 'EU State Aid Law and Consumer Protection: An Unsettled Relationship in Times of Crisis' (Amsterdam Law School Research Paper No 2020-32, 2020)
Abstract: As a result of the global lockdown, countries around the globe are now facing multiple crises at the same time: a health crisis, a financial crisis, and a collapse in commodity prices, which all interact in complex ways. As a reaction governments and policymakers are providing unparalleled support to firms, financial markets, and households. The effectiveness of these policies is considered central to project worse consequences. In order to coordinate the economic response of the Member States and to mitigate the negative repercussions on the EU economy, the European Commission has adopted a Temporary Framework, which enables Member States to use the full flexibility foreseen under EU state aid rules to support the economy in the context of the COVID-19 outbreak. However, in the current crisis the world economy and national economies are also shuttered in their micro-elements, at the demand side. As a result of the measures taken by governments to contain the virus, consumers have seen retail choices limited with hundreds of thousands of shops being required to close their doors, a situation that has exposed consumers to a floodgate of unfair, misleading or abusive business practices. Price gouging for essential consumer products coupled with unfair commercial practices have amplified forcing governments to take various measures, for example introducing price caps. Nevertheless, besides these unfair practices more indirect forms of consumer harm is taking place as a result of some of the current state aid measures that many policy makers may not have immediately realized and acted upon.The current flexibility offered in the State Aid law Temporary Framework has been used by some governments also to tolerate non-compliance with consumer protection rules by undertakings. Such exceptions in fact lead to double burden for consumers. Once as consumers and purchasers of, for example, travel or transport services and second, as taxpayers financing the state aid. Moreover, this may lead to a violation of EU law that lays down the obligation to take consumer protection requirements 'into account in defining and implementing other Union policies and activities' (Article 12 TFEU), a principle also laid down in the EU Charter of Fundamental Rights (Article 38). This normative precedent creates a constitutional basis for considering the requirements of consumer protection in the whole body of EU competition law and policy including the Treaty's state aid provisions. The main question this article aims to answer is how state aid law and consumer protection rules interact in EU law and what lessons these interactions provide for managing the current economic crisis in a coordinated and balanced way that takes equal account of interests on the supply and demand side. While the interaction between consumer law and competition law has been subject to various legal and economic studies in the past, the relationship between state aid rules and consumer protection has not been studied so far. This article fills this gap, by making three novel contributions. First, the article sets out the EU law framework that structures the analysis of how state aid rules and consumer protection interact. It analyses the goals of these two legal areas and how these goals complement or conflict. Second, by presenting two case studies (air transport and energy) it explains and illustrates the constituents of the interaction between these two legal fields and offers an illustration why these intersections should be analyzed in-depth. Third, the article offers policy recommendations that can be applied not only in the current crisis but also beyond, on the coordination and enforcement of these two policies and legal fields.

Dannemann, Gerhard, Christoph Busch and Hans Schulte-Nolke, 'Digital Platforms and COVID-19' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The present article discusses the impact of the COVID-19 pandemic on the platform economy and in particular on the triangular contractual relationships between online platforms, suppliers and customers. It places this discussion in the context of the ongoing debate about the future of platform regulation, including the Model Rules for Online Platforms which were recently adopted by the European Law Institute. Particular attention is given to 'price gauging' for products such as face masks or sanitizers, policies to prioritize essential products on platforms selling goods, and measures undertaken by accommodation platforms to regulate pandemic-related frustration and non-performance of supplier-customer contracts. The article explores the legality of adopted measures. It furthermore argues that imposing a general duty of transparency and fairness on platform operators as market-shapers could help platform operators, platform users and courts as guidelines when they have to adapt to unforeseen future developments. :

Darji, Raksha, 'The Failing Firm Doctrine During COVID-19: A Perspective from South Africa' Competition Policy International (7 September 2020)

Extract from Introduction: The COVID-19 pandemic is likely to result in a large number of firms facing financial distress. This will likely lead to increased merger notifications appealing to the failing firm doctrine ("FFD"). The Commission will be faced with the difficult task of balancing future weakened competition in an already highly concentrated economy with possible firm exit in a country with an already high unemployment rate of 30.1 percent.

Davola, Antonio, 'From the Black Swan, to the Snowball. Risks of Covid-19 Pandemic for Consumer Credit Scores in the Lack of a Harmonized Regulatory Intervention' [2020] Opinio Juris in Comparatione (pre-print)
Abstract: In light of the harmful and wide-ranging effect of the coronavirus pandemic, many governments in the European territory and on the global framework rushed to introduce forms of financial support for those groups that are susceptible to be economically affected by the current situation in order to limit the economic fallout of the pandemic. Still, and in spite of the significant level of regulatory intervention, no major normative change addressed the area of consumer spending and consumer credit. Considering the expected length of the phenomenon, and its impact on the economy and employment, the management of consumers' economic exposure and of unpaid debt is though meant to emerge as a major consequence during and after the expiration of the pandemic: in particular, significant risks are related to the consequences that the deterioration of consumers' exposure caused by the COVID-19 and the pandemic-related factors is likely to have on their credit scores (and, subsequently, in terms of outcome of future creditworthiness assessments). Scores have a major impact on consumer credit landscape, and badly determined/distorted scores invest both consumers and credit operators: consumers are precluded from accessing credit in a moment of financial distress; banks and other institutions are not able to properly discriminate between the quality of potential borrowers, therefore facing risks of overexposure to losses and unprofitable operativity. In order to prevent a further worsening of the (already distressed) global economic health, it is therefore pivotal to promptly introduce harmonized corrective measures to mitigate the risk of unsought deviation in the credit scoring sector. The research investigates the impact of the events related to the COVID-19 infection on the scoring software's functioning, considering how the pandemic is likely to impact on both macro and microeconomic factors related to consumer behavior and indebtedness. The analysis is then developed in order to provide a set of recommendations for interventions with the aim to preserve algorithms' stability, accuracy and predictive power over the pandemic and during its aftermath.

De Stefano, Gianni, 'Covid-19 and EU Competition Law: Bring the Informal Guidance On' (2020) 11(3-4) Journal of European Competition Law & Practice 121-123
Abstract: Societies and citizens have been hit hard by the public health emergency of the Coronavirus disease (Covid-19). Competition law enforcers have already taken up

Drake, Sara, 'Delays, Cancellations and Compensation: Why Are Air Passengers Still Finding It Difficult to Enforce Their EU Rights under Regulation 261/2004?' (2020) 27(2) Maastricht Journal of European and Comparative Law 230-249
Abstract: The aim of this article is to identify why air passengers travelling in the European Union, endowed with the highest standard of consumer protection in the world under EU law, are still being denied their rights and finding it difficult to seek effective legal redress. This article argues that the principal cause of airlines' non-compliance is the poor regulatory design of Regulation 261/2004, which has been compounded by inadequate application by the Member States and regulatory resistance by the airlines. This contribution will then demonstrate how the European Commission ('Commission') has responded through the adoption of both deterrence and compliance-based enforcement strategies, and maps out the mechanisms, tools and actors harnessed by the Commission to create a complex hybrid, multi-layered system of enforcement. The article reveals that enforcement gaps persist and argues that the effectiveness of the regime is unlikely to improve without legislative reform.

Feliszewski, Tomasz, 'Poland Safeguards Competition in Midst of COVID-19 Outbreak' (2020) 4(2) European Competition and Regulatory Law Review 144-146
Abstract: Considers how the Polish competition authority has revised its priorities because of the coronavirus pandemic. Notes the introduction of maximum prices for goods, merger review, and co-operation between competitors.

First, Harry, 'Robbin' Hood' (SSRN Scholarly Paper No ID 3724628, 22 September 2020)
Abstract: Is it an antitrust offense to sell face masks at a high price in the midst of a pandemic? In this essay I address this question by examining two recent decisions in South Africa that found the high prices for face masks charged by two retailers were excessive under South Africa competition law, even though neither firm was shown to be dominant by traditional methods. In addition to discussing the two cases, I argue that South Africa's effort to use competition law to prevent this kind of price increase has important lessons for antitrust enforcement elsewhere, including the United States. Specifically, the two cases remind us of the importance of price in antitrust analysis; the need to pay attention to justice in antitrust analysis; our over-willingness to rely on market corrections rather than acknowledging market failures; and our need to change our culture of antitrust enforcement. It may be that the 'supreme evil' of antitrust is not collusion, but a failure to pay attention to how antitrust can advance justice.

Flores da Silva, Marta and Sofia Rebelo Ladeira, 'Portugal: Procedure - Continuity of Operations' (2020) 41(7) European Competition Law Review N58-N59
Abstract: Notes measures adopted by the Portuguese Competition Authority to ensure continuity of its activities during the coronavirus pandemic, including suspensions of many judicial and administrative deadlines. Summarises the approach to issues including co-operation to ensure the supply and distribution of scarce products, and the pricing of products deemed essential for consumer's health.

Folliot Lalliot, Laurence and Christopher R Yukins, 'COVID-19: Lessons Learned in Public Procurement. Time for a New Normal?' [2020] (3) Concurrences: Competition Law Review 46-58
Abstract: The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships - governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became 'public' goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first principles of transparency and integrity to preserve governments' fragile legitimacy in a crisis.

Frank, Lior, 'Prohibiting Monopolistic Excessive Pricing during the Time of COVID-19' (2020) 41(7) European Competition Law Review 317-322
Abstract: Discusses whether competition authorities should rigorously enforce prohibitions on excessive pricing during the coronavirus pandemic. Reviews the international approach to such a prohibition, why its strong enforcement is justified during the pandemic, and the methods which competition authorities should use to assess whether specific prices are unfair or excessive. Examines the arguments for a 'safe harbour' protection.

Freckelton, Ian, 'COVID-19: Fear, Quackery, False Representations and the Law' (2020) 43(September-October) International Journal of Law and Psychiatry: Special Issue on Mental health, Mental Capacity, Ethics and the Law in the Context of Covid-19 (Coronavirus), Article 101611
Abstract: Fear, anxiety and even paranoia can proliferate during a pandemic. Such conditions, even when subclinical, tend to be a product of personal and predispositional factors, as well as shared cultural influences, including religious, literary, film, and gaming, all of which can lead to emotional and less than rational responses. They can render people vulnerable to engage in implausible conspiracy theories about the causes of illness and governmental responses to it. They can also lead people to give credence to simplistic and unscientific misrepresentations about medications and devices which are claimed to prevent, treat or cure disease. In turn such vulnerability creates predatory opportunities for the unscrupulous. This article notes the eruption of quackery during the 1889-1892 Russian Flu and the 1918-1920 Spanish Flu and the emergence during 2020 of spurious claims during the COVID-19 pandemic. It identifies consumer protection strategies and interventions formulated during the 2020 pandemic. Using examples from the United States, Japan, Australia and the United Kingdom, it argues that during a pandemic there is a need for three responses by government to the risks posed by conspiracy theories and false representations: calm, scientifically-based messaging from public health authorities; cease and desist warnings directed toward those making extravagant or inappropriate claims; and the taking of assertive and well publicised legal action against individuals and entities that make false representations during a pandemic in order to protect consumers rendered vulnerable by their emotional responses to the phenomenology of the pandemic.

Fumagalli, Chiara, Massimo Motta and Martin Peitz, 'Which Role for State Aid and Merger Control During and After the Covid Crisis?' (2020) 11(5-6) Journal of European Competition Law & Practice 294-301 < https://academic.oup.com/jeclap/advance-article/doi/10.1093/jeclap/lpaa036/5881368 >
Abstract: The Covid crisis has not only deeply affected our economies and disrupted markets, but also led to unprecedented state intervention. The role of competition pol

Giosa, Penelope-Alexia, 'Price Regulation: An Alternative to Competition Law Enforcement in the Time of COVID-19?' (2020) 39 Centre for Competition Policy Research Bulletin 24-27
Abstract: One way to deal with apparent Coronavirus-related profiteering, apart from competition law enforcement, is to use regulation to cap the wholesale and retail prices of some products in high demand. However, the use of price controls and price caps has been criticised for running against the spirit of competition policy. This policy brief explains why price regulation is a highly disputed in contemporary regulatory practice and argues that, in the presence of persistent excessive prices, pragmatism justifies price regulation.

Grochowski, Mateusz, 'Towards a Renaissance of Price Control in Contract Law?: Preliminary Observations on COVID-19 and Price Regulation on Consumer Market' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The text addresses the dilemma of retail price regulation on the consumer market in the economic realities triggered by the COVID-19 pandemic. The text discusses the reinvigoration of discussion over price control that ensued in numerous countries as a result of the rapid increase of prices of certain goods (such as medical products and every-day-use utensils). It attempts to preliminarily frame the underlying policy premises of price regulation triggered by the pandemic. It also seeks a more in-depth understanding of the rationale of price review in the extraordinary market conditions, as well as the general rules for allocation of tasks in this regard between public and private law. In so doing, the text focuses primarily on the EU consumer law and attempts to understand what concept of price control it rests on and to what extent it may provide a response to the price concerns in the outcome of COVID-19.

Gurgula, Olga, 'Strategic Patenting by Pharmaceutical Companies: Should Competition Law Intervene?' (2020) 51(9) IIC - International Review of Intellectual Property and Competition Law 1062-1085
Abstract: As the COVID-19 pandemic is affecting the lives of thousands of people worldwide, the problem of timely access to affordable medicines has intensified today. Based on past experience of accessing medicines for life-threatening diseases there is a justifiable fear that access to any vaccines and treatments that are eventually developed may be hindered by patents, leading to unaffordable prices. In particular, one of the reasons that typically leads to high prices is strategic patenting employed by pharmaceutical companies. While this practice is currently considered lawful, this article argues that strategic patenting requires a long-overdue intervention by competition authorities and aims to attract their attention to its harmful effects. It maintains that, along with a more immediate negative effect in the form of high drug prices, strategic patenting affects dynamic competition by stifling innovation of both originators and generic companies. The article outlines the current approach to strategic patenting and provides arguments for the intervention of competition law. This, in turn, will open the possibility for competition authorities to investigate this practice and prevent its harmful effect on drug prices and pharmaceutical innovation, for the benefit of consumer welfare.

Haganta, Raphael, 'Legal Protection of Personal Data as Privacy Rights of E-Commerce Consumers Amid the Covid-19 Pandemic' (2020) 4(2) Lex Scientia Law Review 77-90
Abstract: The use of e-commerce in the midst of the COVID-19 pandemic shows an increase. This is due to the publication of several regulations that limit everyone's activities outside the home, affecting conventional trading activities online by utilizing e-commerce. Although providing benefits during the pandemic, e-commerce has a vulnerability to personal data protection. Through this paper, the authors use normative legal research methods, intending to know the concept of personal data as a right of privacy and the construction of Indonesia's positive laws in legal protection of the personal data of e-commerce consumers.The use of e-commerce in the midst of the COVID-19 pandemic shows an increase. This is due to the publication of several regulations that limit everyone's activities outside the home, affecting conventional trading activities online by utilizing e-commerce. Although providing benefits during the pandemic, e-commerce has a vulnerability to personal data protection. Through this paper, the authors use normative legal research methods, intending to know the concept of personal data as a right of privacy and the construction of Indonesia's positive laws in legal protection of the personal data of e-commerce consumers.

Howarth, David and Harriet Alexander, 'COVID Collaboration and Competition Policy: Authorisation vs Forbearance as Crisis Responses' (2020) 48(2) Australian Business Law Review 189-201
Abstract: The COVID-19 pandemic created immediate and novel challenges for health professionals. Not as immediate but almost as significant have been the extreme disruptions to supply chains, distribution arrangements and demand conditions that have forced many industries to consider collaborative responses. The Australian Competition and Consumer Commission (ACCC) and competition regulators overseas have been called on to balance short-term measures designed to ensure businesses remain viable and can supply goods and services efficiently and fairly, with long-term efforts to preserve competition. This article outlines the ACCC's approach of granting urgent interim authorisations and reviews the content and increasingly strict conditions on collaborative activity. It compares this approach to those adopted by competition regulators overseas before briefly addressing an alternative mechanism open to the ACCC in the (as yet untested) class exemption power. The article concludes by observing that the problems faced in the early adjustment period of the pandemic are likely to be very different to those that may emerge during post-pandemic economic contraction and recovery.

Hutchings, Michael, 'Comments on Coronavirus and Competition Act Exclusion Orders' (2020) 41(8) European Competition Law Review 413-425
Abstract: Discusses the significance of the co-operation arrangements between organisations that were excluded from classification as anti-competitive agreements under the Competition Act 1998 during the coronavirus pandemic. Reviews their public benefits, why such exclusions were not permitted in the past, and their potential future advantages if used to tackle matters such as energy saving, climate change and health improvements.

Irvine, Heather, 'Minister of Trade Industry and Competition Responds Swiftly to COVID-19' (2020) 20(3) Without Prejudice 6-7
Abstract: Unprecedented regulations have been passed by Minister Patel in order to exempt certain categories of agreements and practices in the banking, healthcare and retail sector in order to enable competitors in key South African industries to respond to the COVID-19 crisis. Regulations to deter unfair and excessive pricing of critical consumer goods and services have also been put into place.

Jane, Alex and Jeannie Marie Paterson, 'Frustratingly Unclear? The Interplay between Common Law, Statute and the ACL in Assessing Consumer Rights in a Time of Crisis' (2020) 48(2) Australian Business Law Review 169-179
Abstract: The spread of COVID-19 and subsequent government regulation have substantially impacted service-providing industries. State and federal regulations concerning social gatherings and travel have, in many instances, rendered performance of contracts illegal, economically unworkable or futile. This article considers the remedies available to consumers for service contracts affected by the COVID-19 crisis, with a particular focus on the response of the airlines, and the commonly offered option of credit vouchers. In these unprecedented circumstances, it examines the complex interaction of contract law, including the doctrine of frustration and accompanying statutory incursions on remedy, and consumer rights under the Australian Consumer Law. The article calls for a consistent approach by service providers and the Australian Competition and Consumer Commission that gives consumers a consistent and fair remedy, without the need to resort to the labyrinthine interplay of common law and statute.

Jenny, Frederic, 'Competition Law Enforcement and the COVID-19 Crisis: Business As (Un)Usual ?' (SSRN Scholarly Paper ID 3606214, 20 May 2020)
Abstract: The unexpected shock provoked by the COVID-19 crisis and the measures taken to limit the spread of the pandemic have affected the functioning of many markets. Throughout the world, competition authorities which, in the last decade, had been enforcing their laws in the context of steady economic growth have had to adjust their enforcement practices not only to the difficulties of running their operations created by lockdowns but more importantly to collapsing markets or markets for essential goods characterized by severe shortages, in a context of deep economic depression with many firms facing severe liquidity constraints or even the threat of bankruptcy. Competition authorities have responded to these extraordinarily brutal circumstances by adjusting their enforcement priorities, exempting certain forms of cooperation, relaxing their standards for efficiency defence, adopting emergency procedures, allowing certain forms of state aids, accepting mergers because the target suddenly was a failing firm etc.... while at the same time insisting that these changes did not mean a weakening or an alteration of the competition law principles that they previously followed. This article describes in detail the responses of a number of competition authorities, analyzes the differences in the responses to the COVID-19 crisis of various governments and competition authorities and discusses whether these responses imply a departure from the traditionally accepted goals and enforcement principles of competition.

Journal of Antitrust Enforcement (2020) 8(2) Special Issue: Competition Law in Times of Crisis - Tackling The COVID-19 Challenge
This open access special issue includes contributions from enforcement agencies in Australia, Germany, Hong Kong, Ireland, Russia, South Africa, UK and USA, as well as 14 scholarly and practitioner articles from around the world.
Contents:
I. COMPETITION ENFORCERS
  • Igor Artemiev 'Statement of Igor Artemiev, Head of the FAS Russia'
  • Makan Delrahim 'Tackling the COVID-19 challenge--a view from the DOJ'
  • Isolde Goggin 'How the Irish Competition and Consumer Protection Commission is responding to the COVID-19 challenge'
  • Will Hayter 'Tackling the COVID-19 challenge--a perspective from the CMA'
  • Andreas Mundt 'The Bundeskartellamt in times of COVID-19: adaption of workflows and implications for our enforcement practice'
  • Hardin Ratshisusu and Liberty Mncube 'Addressing excessive pricing concerns in time of the COVID-19 pandemic--a view from South Africa'
  • Joseph J Simons 'The Federal Trade Commission's response to the COVID-19 pandemic'
  • Rod Sims 'Competition law in times of crisis--tackling the COVID-19 challenge: Australian Competition and Consumer Commission'
  • Martijn Snoep 'Competition enforcement in times of crisis--a perspective from the ACM'.
  • Brent Snyder 'Striking a balance between principle and pragmatism in COVID-19-related enforcement in Hong Kong'
II. ACADEMICS AND PRACTITIONERS
  • David S. Evans 'Planning for catastrophes'.
  • Eleanor M. Fox 'Developing countries, markets, and the coronavirus: two challenges'.
  • Monique Goyens and Agustin Reyna 'Public interest in EU policymaking after COVID-19: five short-term lessons from a consumer perspective'.
  • Alberto Heimler 'System wide health care shocks and regulatory interventions in the face of the emergency: are there some lessons to be learned from the COVID-19 crisis?'.
  • Alison Jones 'Cartels in the time of COVID-19'.
  • Damien J Neven 'The EU rescue and restructuring guidelines. Fit for purpose?'.
  • John Noble 'Tackling the Covid-19 challenge--a producer perspective'.
  • Julian Nowag 'Resilience and competition law, in times of emergencies and crises: two research agendas'.
  • Peter Ormosi and Andreas Stephan 'The dangers of allowing greater coordination between competitors during the COVID-19 crisis'.
  • Jorge Padilla 'A Keynesian antitrust response to the COVID-19 crisis'.
  • Hassan Qaqaya 'Sustainability of ASEAN integration, competition policy, and the challenges of COVID-19'.
  • Fiona M Scott Morton 'Innovation incentives in a pandemic'.
  • Maurice E Stucke and Ariel Ezrachi 'COVID-19 and competition--aspiring for more than our old normality?'.
  • Masako Wakui 'Free market versus state or something else?: civic sector and competition law's roles during the COVID-19 pandemic in Japan'.

Juhart, Miha, 'Deferral of Payments under a Credit Agreement as an Extraordinary Measure Due to the Epidemic: A Slovenian Approach' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The SARS-CoV-2 epidemic (COVID-19) poses a particular challenge to many disciplines and requires the state to take action at various levels of engagement. One of those specials is also a credit agreement. To mitigate the effects of the epidemic on the solvency of borrowers, the Slovenian legislator adopted the Intervention Measure Act on Deferred Payments of Borrowers' Obligations. The essential measure is the deferral of payment as stipulated, what means the termination of the maturity of all obligations under the credit agreement until the end of the deferral period of 12 months. During this period, the interest shall be charged on the deferred part of the principal at the regular interest rate. The borrower may apply for the deferral of payment, if the epidemic affects his ability to repay the loan. The bank must offer him the conclusion of annex to the credit contract, if he fulfils all conditions for the application. In the deferral period, the borrower is bound by special reporting obligation concerning his solvency and ability to make a repayment.

Kedogo, Vellah Kigwiru, 'Covid-19, Trade and Competition Law in Africa' (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium III: Sovereign Debt, Finance and Competition Law)
Extract: The link between competition law and trade cannot be overemphasized. Competition agencies at both national and regional level in Africa, play a key role in promoting trade in the region, through approving mergers, ensuring anti-competitive conduct do not occur and protecting consumers from exploitation.

Komninos, Assimakis, Jan Jeram and Iakovos Sarmas, 'A Re-Awakening of the Failing Firm Defense in the EU in the Aftermath of COVID-19?' (2020) (5 April) Competition Policy International_
_Abstract: The COVID-19 crisis raises the question of how EU merger control will be adapted. In particular, whether the standards for accepting the so-called 'failing firm defense' will be relaxed by the European Commission. We discuss the case law and make a few observations on how the FFD is going to play going forward.

Lande, Robert H and Sandeep Vaheesan, 'Can COVID-19 Get Congress to Finally Strengthen U.S. Antitrust Law?' (SSRN Scholarly Paper No ID 3610880, 26 May 2020)
Abstract: The COVID-19 pandemic could cause Congress to strengthen our merger laws. The authors of this short article strongly urge Congress to do this, but to do this in a manner that ignores 5 myths that underpin current merger policy: Myth 1: Mergers Eliminate Wasteful Redundancies and Produce More Efficient BusinessesMyth 2: Current Merger Enforcement Protects Consumers Myth 3: Merger Remedies Preserve Competition Myth 4: The Current Merger Review System Offers Transparency and Guidance to Businesses and the Public Myth 5: Corporations Need Mergers to Grow

Luna, Alvaro and Pablo Salvador Coderch, 'The Spanish Consumer Law in the COVID-19 Emergency' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: As a consequence of the Covid-19 emergency, the Spanish law on consumer contracts has been mainly modified by one legal provision, Section 36 of Royal Decree-Law 11/2020, of 31st March. Paragraphs 1, 2 and 3 of section 36 generally provide the possibility to adjust sales and services consumer contracts. If the parties to the contract do not reach an adjustment or adaptation agreement within 60 days, the consumer can terminate the contract. Nevertheless, both the adjustment and termination requests must clearly fulfill a standard of good faith and fair dealing.

MacKenzie, Neil, 'South African Competition Law in the New World' (2020) 20(7) Without Prejudice 8-9

Abstract: The South African Competition Tribunal recently found a firm guilty of abusing its dominance. The firm was a small trader with a market share of 4.7%. The illegal conduct comprised excessive pricing of face masks for a period of just over one month. The investigation, prosecution and adjudication took less than three months. The fine was R76 040.

Marchisio, Emiliano, 'EU Competition Law Response to the Coronavirus Crisis' (2020) 41(8) European Competition Law Review 373-383
Abstract: Examines how EU competition law has adapted its approach in response to the coronavirus pandemic, including the exemptions granted to TFEU art.101. Reviews the Commission's approach to scarce products, the exchange of commercially-sensitive information, co-operation between firms, and the responses to situations involving cartels, state aid, mergers and abuse of a dominant position.

Mehra, Salil K, 'Price-Discrimination Driven Algorithmic Collusion: Platforms for Durable Cartels' Stanford Journal of Law, Business and Finance (forthcoming)
Abstract: Algorithmic competition has arrived. With it has come the specter of algorithmic collusion - rapid detection of co-conspirators' defection via technologically enhanced price monitoring and setting capability can encourage anticompetitive collusion. Strikingly, the ability to track consumers' willingness-to-pay and price discriminate among them may synergize with algorithmic collusion into something antitrust scholars had previously thought impossible: stable cartels. In particular, consumer-facing digital platforms increasingly can determine consumers' individual willingness to pay. Doing this allows them to deploy sophisticated forms of price discrimination, and thereby effect large welfare transfers from consumers to producers. This Article is the first to describe and analyze the potential interaction between price discrimination and algorithmic collusion. Algorithm-driven platforms now knit together large numbers of previously-independent firms and agents; some platforms set the price these participating firms and agents will charge. Crucially, if the gains to producers from collusive price discrimination are big enough, a qualitative change may take place: participants may find that they are no longer are in a Prisoner's Dilemma tempting them to undercut each other on price, but rather in a coordination game with a single, rational choice: keep their collusion going. This Article sets forth how this dynamic can produce agreements by competitors, facilitated by price-discriminating, price-setting platforms that transfer wealth from consumers to producers - arguably a violation of Section 1 of the Sherman Act. Indeed, in contrast to the traditional view that firms need to first obtain Section 2 monopoly power, and only then can implement price discrimination, the model presented here shows the causation can run the other way: The ability to price discriminate effectively can drive the joint maintenance of monopoly power by colluding competitors. This dynamic takes on new urgency as more and more commerce shifts to the Internet and smartphone apps, a trend that has been accelerated by the COVID-19 pandemic and its associated acceleration of the shift to e-commerce. Potential solutions to this problem will be complicated by antitrust law's current relegation of price discrimination to the dead letter office - no Federal Trade Commission complaint under the Robinson-Patman Act, the main relevant statute, has been brought this century. Indeed, during the past decade, the most recent edition of the leading antitrust casebook in the U.S. deleted its section on price discrimination and the Act. This Article proposes three actions: (i) revive some enforcement against price discrimination, (ii) prioritize action against price discriminating platforms that inhibit switching by participants, including scrutinizing mergers between firms whose Big Data-based ability to gauge willingness-to-pay may, if combined, have negative ramifications for consumers, and (iii) factor price discrimination-driven algorithmic collusion into the current reevaluation of vertical restraints.

Meyer, Susan, Preanka Gounden and Charissa Barden, 'More Bark and Bite: Competition Law as an Additional Means of Post-Pandemic Support' (2020) 20(5) Without Prejudice 29-30
Abstract: The Competition Act (89 of 1998) and its noble purpose of, among other things, supporting historically disadvantaged persons (HDPs) and small, medium and micro enterprises (SMMEs), has been in force for just over two decades. Certain 2019 amendments to the Act specifically sought to strengthen efforts to promote economic inclusiveness of SMMEs and HDPs. It is in this regard that competition law may provide additional support, a proverbial bark and bite, to existing government efforts aimed at achieving a more equitable society. This has particular relevance in a post-pandemic context.

Morton, Sophie, 'Competition, Co-Operation and COVID-19' (2020) 24(1) Inhouse Counsel 6-8
Abstract: The public health response and the economic response to the impact of the COVID-19 pandemic are inextricably linked. In order to support businesses in implementing social distancing measures, with the effects of supply chain disruption and other consequences of the outbreak, the Government has developed numerous policy measures aimed at lessening the economic impact. The Australian Competition and Consumer Commission (ACCC) has also identified several regulatory priorities arising from the outbreak, establishing a COVID-19 Taskforce. As a result of the pandemic, the ACCC has granted permission for organisations in several sectors to behave in a way which would ordinarily be prohibited, so that businesses can work together to co-ordinate and strengthen Australia's response to COVID-19. ACCC Chair Rod Sims told the 'Australian Financial Review' Banking & Wealth Summit Crisis Briefing that

Moss, Diana L, 'From Competition to Conspiracy: Accessing the Federal Trade Commission's Merger Policy in the Pharmaceutical Sector' (SSRN Scholarly Paper No ID 3701158, 3 September 2020)
Abstract: Prescription drugs safeguard Americans from numerous life-threatening maladies. Competition in pharmaceutical R&D, and for generic entry, produces essential drugs and ensures that medications are accessible and affordable. That promise is fading. There is mounting evidence that connects high market concentration and high drug prices. Price gouging for important drugs, conspiracies to fix generic drug prices, and ever more innovative schemes by branded drug manufacturers to keep generic rivals out of the market put merger control at center stage.The AAI White Paper 'From Competition to Conspiracy: Accessing the Federal Trade Commission's Merger Policy in the Pharmaceutical Sector' examines a major root of this problem--the Federal Trade Commission's (FTC's) policy of settling virtually all challenged horizontal pharmaceutical mergers with consent orders requiring divestitures. This stands in contrast to agency decisions to seek injunctions to stop highly concentrative, harmful mergers--arguably the most effective remedy for fully restoring competition. AAI's macro-analysis of pharmaceutical mergers challenged by the FTC between 1994-2020 (to date) reveals that many drug makers engaged in serial mergers and/or repeatedly went to the till to purchase divestiture assets in other challenged mergers. Many of these firms were subsequently acquired by other pharmaceutical manufacturers, sometimes shortly after purchasing divestiture assets.The effect of the FTC's policy has been the swapping of assets within a relatively small group of large and increasingly powerful firms. Just under 20% of all unique branded and generic firms that engaged in repeated mergers and acquisitions (M&A) and/or purchases of divestiture assets account for almost 45% of pharmaceutical assets 'changing hands' from 1994-2020. Many of the very firms that were the most active in M&A, and as purchasers of divestiture assets, appear as defendants in private, state, and federal non-merger antitrust litigations and in federal criminal indictments. These accumulating lawsuits serve as powerful evidence that something has gone awry with merger policy in the pharmaceutical sector, leading to the exercise of market power by dominant firms and oligopolies.The FTC's role in managing the allocation and ownership of important pharmaceutical assets through its extraordinary approach toward merger control has unduly involved it in shaping the industry. This resembles a form of 'industrial planning' rather than antitrust law enforcement, which is designed to deter future anticompetitive conduct and relies on market forces to determine market structures. The FTC's policy has also deprived the antitrust community and public of important transparency. Because no challenged merger between 1994-2020 was litigated in federal court, there is no judicial record detailing how highly concentrative mergers were likely to have survived a presumption of illegality. There is thus no way to evaluate claims that pharmaceutical mergers were likely to have delivered lower prices through claimed cost savings or consumer benefits due to improved quality and innovation.This White Paper begins with background on drug pricing and competition in the pharmaceutical supply chain. It then turns to the drug mergers themselves and the asset divestitures required in FTC consent orders. Next is an assessment of private, state, and federal antitrust cases against the companies involved in M&A and as buyers of divestiture assets. It concludes with policy recommendations on reframing competition policy in the pharmaceutical sector. The FTC, which has devoted considerable resources and expertise to understanding the pharmaceutical sector, should take the lead in reforming its own policy on merger control.Competition problems in pharmaceuticals now rise to the level a public policy concern, addressable only through a coordinated policy response, of which stronger antitrust enforcement and legislative reform should be central components. The imperative for wholesale change in the FTC's merger policy in the pharmaceutical sector is more pressing than ever. Only robust competition among drug makers will result in the availability and affordability of drugs more generally, but also essential drug therapies and vaccines relating to the COVID-19 pandemic.

Mpe, Palesa and Jeremy de Beer, 'What's with the Price Gouging?' (2020) 20(7) Without Prejudice 6-7

Abstract: COVID-19 has brought with it some legal developments in South Africa. Along with citizens navigating nationwide lockdowns, prohibitions and curfews, competition authorities also find themselves in uncharted territory. The Competition Tribunal has, to date, heard and delivered judgment on two COVID-19 related excessive pricing matters. These matters have introduced a new concept into the South African competition law landscape: "price gouging".

Nicolaides, Phedon, 'Application of Article 107(2)(b) TFEU to Covid-19 Measures: State Aid to Make Good the Damage Caused by an Exceptional Occurrence' (2020) 11(5-6) Journal of European Competition Law & Practice 238-243

Abstract: On 12 March 2020, the European Commission approved the first state aid measure to combat the Covid-19 pandemic (case SA.56685 notified by Denmark). Two months later the Commission authorised more than 120 measures, mostly in the form of grants and subsidies for loan guarantees and interest rates.1 The vast majority of those measures were authorised on the basis of Article 107(3)(b) TFEU which allows state aid to 'remedy a serious disturbance in the economy of a Member State'. Only 10 measures were authorised on the basis of Article 107(2)(b) TFEU for the purpose of making 'good damage caused by a natural disaster or exceptional occurrence'. Covid-19 is both an exceptional occurrence and a serious economic disturbance. This suggests that Member States could choose to notify their aid measures on the basis of either Article 107(2)(b) or Article 107(3)(b). In theory, they should have chosen Article 107(2)(b) because the discretion of the Commission in this instance is narrower than under Article 107(3)(b). The Treaty itself declares aid to make good the damage caused by an exceptional occurrence compatible with the internal market, whereas aid to remedy a serious disturbance may be compatible with the internal market. Therefore, the discretion of the Commission is much wider in assessing whether the latter is or is not compatible.

Nigam, Mudit and Shreya Chandhok, 'COVID-19 Crisis and CCI's Response: Lessons to Be Learned from Australian and British Regulators' (2020) 41(8) European Competition Law Review 419-421
Abstract: Reviews the approach of the Competition Commission of India (CCI) towards co-operation and concerted actions between competitors in response to the coronavirus pandemic. Considers whether the CCI has tended to penalise or exempt such conduct, compares the approaches adopted by the Australian Competition and Consumer Commission and the UK Competition and Markets Authority, and suggests lessons they could offer India.

Ormosi, Peter and Andreas Stephan, 'Should Competition Law Be Suspended to Help Deal with the COVID-19 Crisis?' (2020) 39 Centre for Competition Policy Research Bulletin 28-33
Introduction: When the escalation in Covid-19 sparked panic buying and shortages of key products, UK supermarkets asked the government to consider suspending competition law, to allow them to co-ordinate supplies and reduce shortages. On 25 March 2020, the UK's Competition and Markets Authority (CMA) published a document stating that, 'Throughout the UK, businesses are... providing essential goods and services to consumers, to ensure key workers can carry out their important tasks and in getting the country through this crisis. The CMA understands that this may involve coordination between competing businesses. It wants to provide reassurance that, provided that any such coordination is undertaken solely to address concerns arising from the current crisis and does not go further or last longer than is necessary, the CMA will not take action against it.' (paras 1.4 and 1.5) (emphasis added) This article examines the consequences of providing this reassurance and asks whether it is a good idea.

Papazova, Mariya, 'Bulgaria: Competition Protection Commission, Antitrust Activity and the COVID-19 Outbreak' (2020) 4(2) European Competition and Regulatory Law Review 115-119
Abstract: Reports on the Bulgarian competition authority's response, in line with EU guidance, to the challenge of the coronavirus pandemic. Notes the investigation of mass fuel markets, and supermarkets' obligations to sell locally produced food.

Power, Vincent, 'Ireland: Competition: COVID-19 Crisis' (2020) 31(8) International Company and Commercial Law Review N66-N69
Abstract: Notes the March 2020 online publication by Ireland's Competition and Consumer Protection Commission (CCPC) of the joint statement by the European Competition Network (ECN) concerning the relationship between the coronavirus pandemic and competition law. Details the ECB's views on the flexibility of competition rules, its awareness of the impact and consequences of the coronavirus pandemic, and the importance of co-operation between undertakings.

Rakic, Ivana, 'Competition Law in the Age of Covid-19' (2020) 68(2) Anali Pravnog fakulteta u Beogradu 25-61
Abstract: The aim of this article is to provide a short overview and analysis of some competition authorities' responses to the COVID-19 emergency, by evaluating the state of play and, where relevant, making proposals for how competition law and its enforcement might develop worldwide. The article contributes to the existing international debate about the consequences of the current COVID-19 crisis on competition law. The analysis is limited to restrictive agreements, abuse of dominance and merger control.The undertakings must primarily be aware of that current crisis is not an excuse to breach competition laws and that competition laws continue to apply, with no general crisis exemption, nor during the COVID-19 crisis. The competition authorities are accommodating their practice in addressing restrictive agreements (cooperation between competitors in times of economic crisis), abuse of dominance (measures to protect against exploitative pricing), and merger control (procedural and substantive aspects of control).

Ribeiro, Amadeu, 'Brazilian Competition Law and M&A: Key Elements to Bear in the Current Context of the Global Economy' Competition Policy International (9 December 2020)
Abstract: The level of antitrust scrutiny of M&A transactions in Brazil has significantly increased over the past few years, with several transactions being subject to in-depth review, remedies, or even rejected by the Administrative Council for Economic Defense ("CADE"). This has made antitrust a key aspect in the negotiation of many M&A transactions. One must evaluate in advance the likelihood of a given transaction being unconditionally cleared by CADE, and what types of remedies might be imposed if there is a concrete probability of conditional clearance. This all of course also impacts the expected timeline of CADE's merger review, and affects the substance of negotiations between parties, such as issues regarding price, investment exit strategies, as well as issues regarding the allocation of antitrust risk, bringing about discussions on break-up fees, hell-or-high water clauses, among other related contractual mechanisms. This discussion becomes even more relevant in times of crisis, when timing, flexibility and creativity to find reasonable solutions become critical for practitioners and enforcers alike. However soon the end of the current health crisis will come, its negative effects on the Brazilian economy are visible and will likely worsen. Against this background, we cover in this article a few key elements in Brazilian competition law and practice that may be of particular relevance during these times of economic crisis.

Riefa, C, 'Coronavirus as a Catalyst to Transform Consumer Policy and Enforcement' (2020) 43(3) Journal of Consumer Policy 451-461
Abstract: A review of the unfair commercial practices (including price gouging) that have emerged in the context of the pandemic lead us to reflect on how effective consumer law enforcement is at this juncture. This article calls for the pandemic to act as a catalyst to review the way consumer law has so far approached markets and their regulation. It argues that now, more than ever, consumer law needs to protect the vulnerable and public enforcement mechanisms must be able to prevent harm as much as possible rather than repair it. Fairness should be by design and not something that is offered to consumers simply as a remedy. The article explores some viable solutions to effect this transformation of consumer policy and enforcement beyond the pandemic.

Santos Silva, Marta and Luisa Cortat Simonetti Goncalves, 'Nudging Consumers towards Sustainable Practices Regarding Plastics in a Post-COVID-19 Europe' in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: Producers and consumers play an important role in the fight against plastic pollution, particularly as far as single-use plastics (SUPs) are concerned, that depend on product eco-design and change in consumption patterns. The EU acknowledges this role of producers and consumers, and established goals for Member States, often in the form of rules addressed to the industry. The challenges caused by SUPs were, however, increased by the COVID-19 pandemic that led to an exponential production of protective equipment, such as masks and gloves, food packaging and take-away containers. This paper thus purports to address the question of how nudging can foster sustainable practices regarding plastics in Europe during and after the coronavirus crisis. Based on the understanding that behavioural insights are useful to both policy and lawmakers and on statistical information available on the impact in consumer choice and the environment, this paper demonstrates the utility of nudges in the particular COVID-19 scenario and concludes that consumers shall be given a prominent role in the orchestration of the transition to a sustainable plastics economy. In order to do so, the paper (1) describes the omnipresence of plastics in the products offered to consumers; (2) contextualizes the European approach to SUPs on the search for a circular economy; (3) summarises the impacts of the coronavirus crisis on the environment and on the law in Europe; (4) describes the role of stakeholders in a sustainable plastics economy; and (5) sets the importance of addressing consumer behaviour through nudging in the fight against SUPs.

Schinkel, Maarten Pieter and Abel d'Ailly, 'Corona Crisis Cartels: Sense and Sensibility' (SSRN Scholarly Paper ID 3623154, 9 June 2020)
Abstract: Western competition authorities responded quickly and unanimously to the COVID-19 pandemic with a generous exemption from cartel law for any companies that aim to solve pressing scarcities through collaborations that restrict competition. However there is little reason to expect more supply, fair distribution, or wider use of personal protective equipment faster or at all from anticompetitive horizontal agreements. Traditional crisis cartels are about reducing excess supply, not excess demand. Embracing the policy may well have been about public image, rather than high expectations of collaboration amongst rivals contributing to solving the needs associated with COVID-19. This remarkable field experiment is not without side effects. By relaxing the first article of antitrust, the agencies undermined their own authority, just when we need them to effectively control the many markets that are rapidly consolidating as a result of the lockdowns and asymmetric state aids. The agencies should have stood by competition instead. On the other hand, this case could become a rich source of learning about the effectiveness of public interest cartels.

Silber, Norman I and Jeff Sovern, 'Placing Consumers at the Front of the Relief Effort: Redirecting Credit Card Interest Charges' (Hofstra University Legal Studies Research Paper No No 2020-04, Hofstra University, 2020)
Abstract: Catastrophes including the COVID19 pandemic of 2019-2020 impose great financial stress on consumers. This op-ed proposes the distribution of economic relief directly to consumers by authorizing credit card issuers to bill Congress for portions of the interest that otherwise would be charged to cardholders. Significant benefits include expanding access to consumer credit when it otherwise would be expected to diminish, reduced consumer default rates and bank charge-offs, and greater stimulus to overall economic welfare.

Sims, Rod, 'Competition Law in Times of Crisis: Tackling the COVID-19 Challenge: Australian Competition and Consumer Commission' (2020) 8(2) Journal of Antitrust Enforcement 264-266
Abstract: The COVID-19 pandemic has completely changed the economic landscape in Australia and the focus of the Australian Competition and Consumer Commission (ACCC). In recent weeks, I have often been asked 'will competition survive the current crisis'? I have stated that it must and it will, as it is fundamental for the recovery phase of the crisis. An open, well-functioning economy is essential to the prosperity of all Australians, and such an economy depends completely for its success on robust competition.This short note explores the ACCC's response to the challenges posed by COVID-19, which have led to many 'crisis collaborations' across sectors in the Australian economy.

Smejkal, Vaclav, 'Impact of the COVID-19 Pandemic on European Antitrust: Mere Adaptations or Real Changes?' (Charles University in Prague Faculty of Law, Working Paper No No 2020/11/1, 2020)
Abstract: The European Commission and the competition authorities of the EU member states responded to the coronavirus crisis with assurances about sufficient flexibility of their instruments. They enabled temporary cooperation between competitors to ensure the supply of essential medical products and services. At the same time, they warned against any misuse of the crisis for overpricing or other monopolistic practices. However, the crisis has also intensified long-term pressures for a fundamental adaptation of European competition rules. The first challenge is represented by Chinese state-backed enterprises as potential acquirers of weakened European competitors. The second source of pressure is the increasingly dominant role of global online platforms. Their role as an irreplaceable infrastructure for management, communication, counselling and distance learning was reinforced in the coronavirus crisis. The Commission and other experts are already discussing appropriate responses. This paper maps the discussion on possible EU responses to these challenges and tries to show the strengths and weaknesses of the proposed solutions and on this basis to estimate the future development of EU antitrust in the post-coronavirus period.

Svetlicinii, Alexandr, 'State-Controlled Entities in the EU Merger Control: The Case of PKN Orlen and Lotos Group' (2020) 13(22) Yearbook of Antitrust and Regulatory Studies 189-209

Abstract: The economic downturn caused by the coronavirus pandemics is expected to result in the increased participation of the state in the functioning of markets. One of the forms of this participation is the recapitalization and state shareholding in commercial enterprises, which could lead to anti-competitive effects to the detriment of competitors and consumers. In this regard, the effective enforcement of merger control rules at the EU and national levels gains in importance. The present paper questions the adequacy of the available merger control standards and assessment tools for taking into account potential anti-competitive effects stemming from ownership and non ownership forms of state control over undertakings. The analysis is focused on the experiences of Polish state owned enterprises under the EU and national merger control assessment. It was prompted by the notification of the PKN Orlen/Lotos merger that received conditional clearance from the EU Commission.

Tagara, Myrto et al, 'The EU Commission and EU Member State Competition Authorities Issue a Joint Statement on the Application of Competition Law during the COVID-19 Crisis in the Context of the European Competition Network' [2020] (Preview) Concurrences e-Competitions Bulletin_
_Abstract: The life sciences industry is facing unprecedented demands due to COVID-19. From front line carers to researchers and scientists, significant efforts are being put towards caring for those suffering from COVID-19 and preventing the spread of the virus. Amidst the fierce competition to develop vaccines and treatments, there may also be the need to collaborate. As companies develop testing kits, trial drugs, manufacture ventilators, and step up medical supply distribution, they may be concerned about whether their collaboration efforts could draw the scrutiny of competition law enforcers. The European Commission and EU Member State competition authorities have issued a joint statement on the application of competition law during the COVID-19 crisis in the context of the European Competition Network. While there is recognition that in these extraordinary times cooperation may be necessary, the competition rules remain relevant and fully applicable.

Togo, Federica, 'Italy: Anti-Competitive Agreements - Coronavirus' (2020) 41(9) European Competition Law Review N77-N78
Abstract: Notes the Italian Competition Authority's April 2020 communication on co-operation agreements between companies operating in response to urgent situations created by the coronavirus pandemic, including the general criteria to be applied in such circumstances. Highlights the Authority's May 2020 announcement that it was taking no further action over a co-operation project between pharmaceutical distributors involving single-use surgical masks.

Twigg-Flesner, Christian, 'The Covid-19 Pandemic: A Stress Test for Contract Law?' (2020) 9(3) Journal of European Consumer and Market Law 89-92
Extract: The consequences of this crisis have raised many legal issues, particularly for consumer and commercial contracts. For example, many consumers who prepaid for services to be provided at a later date (such as flights, accommodation, or venues for family celebrations) have struggled to obtain refunds from their service providers, with many offering vouchers instead in an attempt to preserve some of their cash reserves, thereby inadvertently turning consumers into unsecured lenders to business. Moreover, businesses and consumers with long-term loans or rental commitments may not be able to keep up their contractual instalment payments, and face being in default and, at worst, being evicted from homes or retail premises. Many long-term contracts, whether for the regular supply of goods or services or subscription-style contracts, cannot be performed on time, with performance either suspended or at least subject to delays. There are many other ways in which the crisis and its consequences have affected the performance of contracts, but this brief account suffices to set the scene. The central legal issue in respect of contracts can be boiled down to one seemingly simple question: what is the impact of the crisis and its consequences on the rights and obligations of the parties to a contract which can no longer be performed as expected? However, answering that question is far from simple and will depend on the reason why, and the extent to which, a contract can no longer be performed as expected, the relevant rules of the governing law which provide relevant legal solutions in respect of that reason, and any contract terms which might cover the circumstances which have arisen.

Wakil, Omar, Dany H Assaf and Linda M Plumpton, 'COVID-19's Impact on Competition Enforcement and Foreign Investment Reviews in Canada' (2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Abstract: The COVID-19 crisis is creating significant challenges for the Competition Bureau and Canadian government as they review competitor collaborations and M&A activity.

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback
This website is using cookies. More info. That's Fine