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.
Okeoghene Odudu and Albert Sanchez-Graells
This chapter assesses the framework enabling private parties to enforce competition law and the implications this has both in relation to the evolution of national tort law in European Union (EU) member states and for an incipient acquis of EU tort law. It considers how the law has evolved since the Court of Justice of the European Union (CJEU), in Courage v Crehan, confirmed that those able to show that they have suffered loss as a result of a competition law violation are able to recover compensatory damages and the progress made since the adoption of Directive 2014/104/EU on antitrust damages. The chapter focuses on four selected topics: the erosion of the requirement of fault; the erosion of individual responsibility; the extension of recoverable losses; and modifications to the burden of proof arising from a presumption of damage resulting from certain types of anti-competitive behaviour. It concludes by questioning whether traditional tort law doctrines at member-state level can survive under the pressure of these EU law developments. The chapter indicates areas of uncertainty that may serve to guide future research efforts.