Competition: Commission adopts a more flexible antitrust Informal Guidance Notice; withdraws Antitrust COVID Temporary Framework

This article is brought to you in association with the European Commission.

The European Commission has today adopted a revised Informal Guidance Notice that allows businesses to seek informal guidance on the application of EU competition rules to novel or unresolved questions. The revised Informal Guidance Notice provides for more flexible conditions and aims at increasing legal certainty, to the benefit of businesses seeking the guidance when assessing the legality of their actions under EU competition rules. Informal guidance will take the form of “guidance letters”.  

The Commission has also today decided to withdraw the Antitrust COVID Temporary Framework in light of the relative improvement of the sanitary crisis in Europe. The Antitrust COVID Temporary Framework, adopted in April 2020, allowed the Commission to assess business cooperation projects in response to situations of urgency stemming from the coronavirus outbreak.

Review of the Informal Guidance Notice

The 2004 Informal Guidance Notice specified the circumstances in which the Commission would consider issuing informal guidance to companies on the application of EU competition rules. The 2004 Notice provided for strict criteria, which limited the circumstances in which the Commission could provide informal guidance. The tool was never used for that reason.

In May 2022, the Commission invited all interested parties to provide feedback on the draft text of the revised Informal Guidance Notice, in close cooperation with the National Competition Authorities. In October 2022, the Commission published a summary report of the results of that consultation.

The revised text adopted today updates the criteria that allow the Commission to provide informal guidance to businesses in cases presenting novel or unresolved questions, including in situations of crisis or other emergencies. It will be instrumental for businesses involved in emerging ways of doing business, as well as for those facing a crisis or other emergencies.

In particular, the revised tool:

1. increases the Commission’s flexibility to address a wider range of issues in guidance letters. It allows the Commission to factor in the relevance of the practices for the achievement of the Commission’s priorities and EU’s interests; and
2. broadens the definition of “novel” issues where there is “no clarification” available in the EU legal framework to cover cases where there would be “no sufficient clarification”.

Antitrust COVID Temporary Framework

At the same time, in light of the improvement of the sanitary situation in Europe as well as the relaxation of restrictions, the Commission has decided to withdraw its  Antitrust COVID Temporary Framework.

The Temporary Framework, adopted on 8 April 2020, set out the criteria that the Commission would follow when assessing cooperation projects aimed at addressing a shortage of supply of essential products and services during the coronavirus outbreak. It also introduced the possibility for the Commission to provide companies with written comfort (via ad hoc “comfort letters”) on specific and well-defined cooperation projects falling within its scope.

The Commission considered it appropriate to withdraw the Temporary Framework as the exceptional circumstances and related challenges that may trigger the need for companies to cooperate in order to mitigate the effects of the crisis are, at this stage, no longer present.

In the event of a sudden and unexpected deterioration of the sanitary situation and related supply disruptions of essential products and services, companies can seek guidance under the revised Informal Guidance Notice.

Background

Regulation 1/2003 (Council Regulation (EC) No 1/2003 of 16 December 2002) set up an enforcement system for antitrust rules pursuant to Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”).. The system is based on self-assessment, as companies are generally well placed to assess the legality of their actions. They are closer to the facts and have at their disposal the framework for assessment in the form of block exemption regulations, the Commission’s case practice, guidelines, notices and the case law.

However, Regulation 1/2003 allows the Commission to provide informal guidance to companies, in cases in which they are genuinely uncertain about the application of antitrust rules.

On this basis, the Commission adopted in 2004 the Notice on Informal Guidance relating to novel questions concerning Articles 101 and 102 of the TFEU that arise in individual cases. The purpose of the Notice was to specify the circumstances in which the Commission would consider issuing informal guidance to businesses.

With respect to the  Antitrust COVID Temporary Framework the Commission issued on 8 April 2020 a comfort letter  to “Medicines for Europe”, an association of pharmaceutical manufacturers, and participating companies in relation to a voluntary cooperation project to address the risk of shortages of critical hospital medicines for the treatment of coronavirus patients. On 25 March 2021, the Commission issued a further comfort letter, addressed to co-organisers of a pan-European matchmaking event, which aims at addressing bottlenecks in current production of COVID-19 vaccines and accelerating the use of additional available capacities across Europe.