Thursday, August 13, 2020
In order to respond to the COVID-19 pandemic it has been recognized universally that cooperation between competitors will be necessary. It is also recognized that some of the cooperation contemplated will infringe competition law. A number of techniques are available by which conduct that infringes competition law can escape prohibition. Two techniques used have been to issue guidance on how the competition authority understands the law to apply and to articulate how it will exercise its discretion when deciding to take enforcement action. The combination of these two techniques provides a degree of comfort. In the United Kingdom, the government has gone further by identifying necessary cooperation and excluding such cooperation from competition law on grounds of public policy, in one instance for those in the groceries supply chain. The use of an exclusion order means that there is political accountability for the consequences the decision to set aside competition law will have, both for competitors, others in the supply chain, and for different consumer groups. For parties to excluded agreements, there is certainty ex ante that the cooperation is immune from competition challenge. Avoiding the need to assess the compatibility of an agreement with competition law, rather than permission to engage in incompatible behaviour, can be seen as the real value of the public policy exclusion order granted in relation to groceries.