Many companies are experiencing major economic consequences of the corona crisis. To mitigate the economic impact of the crisis, the Consumer and Market Authority (ACM) is relaxing its supervision of competition compliance.
authors: Annemieke van der Beek & Minke de Haan
The ACM gives companies room to make agreements that should not be made outside times of crisis. Invoking the public interest, it is possible within the framework of the competition rules to make such agreements, as long as they do not go beyond what is necessary in connection with the crisis. Trade-offs can be made that in normal circumstances would not be made so quickly. This was stated by Martijn Snoep, ACM board chairman, in an interview with the Financieel Dagblad: "This is not a normal time."
Snoep gives some examples of agreements that are now considered permissible. Under this "crisis approach," it may be permissible for companies to exchange (normally prohibited) competitively sensitive information. For example, supermarkets may inform each other about the size of their inventories, and drug wholesalers may inform each other about the quantity of items they sell. Logistics service providers may cooperate to supply Dutch citizens with food. Branches are allowed to make agreements with each other on dealing smoothly with debtors. The ACM is also relaxing its enforcement in the area of mergers and acquisitions. If companies have run into problems due to a drop in demand and want to merge to avoid bankruptcy, the ACM will be accommodating in a request for exemption from the standstill period. This means that the ACM's approval need not be awaited before the merger is carried out.
However, Candy calls on companies not to go further than necessary to defuse the crisis. This means that even in this time of crisis, a competition law test must be made as to whether an agreement is prohibited or justified on the basis of considerations such as public interest. The ACM also warns on its website that the corona crisis may not be a reason for companies to abuse uncertainties and scarcity. Companies may not agree among themselves to raise prices. Dominant companies are still not allowed to implement excessive price increases. Misleading consumers is not allowed. Sellers may not make unjustified claims. Companies must continue to provide accurate and realistic information when products can be delivered later or no longer be delivered due to, for example, factory closures. According to Snoep, the ACM "will not hesitate to intervene" in such practices.
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