The Organization for Economic Co-operation and Development (OECD), through its Competition Division, has released two information notes to the antitrust community. The first proposes guidelines to help governments and competition authorities in dealing with the immediate challenges generated by the Covid-19 pandemic, while aiming for a sustainable recovery of the economy in the post-pandemic future. Meanwhile, the second note analyzes situations where collaboration among competitors can be legitimate and pro-competitive.
Under the first information note, the OECD recommends that governments support actions that follow the principles and enforcement of competition policy; limit the application of protectionist measures and prioritize the free and open market; and develop strategies to mitigate interventions in the economy for both the medium and long-term. The idea is that governments provide subsidies, so that their countries’ competition authorities can define policies for economic recovery and maintenance of competition, while adopting timely and well-defined interventions in the market, except when strictly necessary for long-term recovery.
For antitrust agencies, the OECD suggests the non-flexibility of the deterrent power of competition law; the prioritization of enforcement and competition advocacy actions in the sectors most impacted by the crisis, such as health, aviation, and tourism; assistance to governments to develop transparent, general and objective public policies that apply to all companies in a given sector or region; continuous monitoring of significant and sharp price increases, in cooperation with consumer protection authorities; the publication of guidelines for legitimate cooperation among competitors or thus keeping an eye on crisis cartels; careful examination of mergers, ensuring the strict application of the failing firm defence; and, finally, the flexibilization of procedures, when necessary and justified, such as the extension of deadlines or postponement of the analysis of cases that do not require urgency, as in compliance with due process of the law. To read the full OECD note, click here.
As for the second information note, the OECD analyzes several examples of collaboration agreements between competitors from different jurisdictions and identifies some common criteria for legal collaboration. Some emerging challenges and solutions that competition authorities have developed during the crisis have also been identified, as well as open questions that may require further research and discussion. To read the full OECD note, click here.