While antitrust law sets very strict limitations on cooperation between competitors and generally prohibits the exchange of competition-relevant information, the European Commission just published a temporary framework to facilitate cooperation.
Purpose of the temporary framework
In order to ensure the supply and proper distribution of important but scarce goods (especially medicines and medical equipment) during the corona crisis, cooperation in general, and also between competitors, will be facilitated.
Within this temporary framework the Commission recognises a need for extensive coordination action between competitors through appropriate trade associations (e.g. with regard to production capacities or the identification of supply shortages). At the same time, it stresses the general prohibition of exchanging individual company information between competitors, even during the temporary framework.
Conditions for the exchange of commercially sensitive information
In addition, the temporary framework even allows for the exchange of commercially sensitive information or coordination of the production of medicines or medical equipment, provided that the measures are
- objectively necessary and aim at avoiding shortage in the supply of essential goods or services by efficient increases in production,
- temporary in nature and limited to the duration of the COVID crisis, and
- limited to what is strictly necessary.
Documentation
In order to be able to demonstrate at any time that these conditions for corresponding contact with competitors are met, companies must carefully document all communication and exchange of information with competitors and all agreements and make them available to the European Commission upon request.
The full Communication from the European Commission can be found here: https://eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:52020XC0408(04)&from=EN
