Covid-19以前所未有的方式影响了我们的世界。几乎没有任何行业避免了严重的经济后果。虽然有些雕刻出现在危机时段，但公司必须继续遵守规则并保持符合要求。这适用于竞争法。

Although the competition authorities cannot operate with their usual staffing levels or effectiveness at the moment, they have expressed that they will closely monitor markets and take action at the latest when the crisis is over. While enforcers have accepted that short-term and necessary forms of co-operation to combat the effects of the current crisis may be justified, they are determined to use their tools to crack down on any company that infringes competition law in the shadow of the current crises.

Below we have summarized some key issues and offer practical recommendations:

1.More leeway towards suppliers and customers?

The current situation is already leading to changes in the competitive landscape, with shifting supply chains and more local sourcing patterns. This may force companies to adapt their competitive behaviour and compliance strategies not only in the short term, but also in the medium and long term:

•危机相关的市场干预措施导致竞争环境的变化。因此，个人市场参与者可能暂时获得重大的市场力量，使他们在国家或欧盟竞争法下实现更严格的统治性规则。如果公司利用这种权力，竞争当局可能会征收罚款或需要临时措施。In some cases this has already been done (i.e. France’s competition authorities are investigating excessive prices for sanitizers notably and the Government has adopted temporary price regulation on retail and wholesale prices for certain products (sanitizers, masks etc.); in Italy, the competition authority has started proceedings against Amazon and Ebay for excessive pricing of hand sanitizer, protective masks and sanitation products on the basis of the consumer code rules);

•终止供应关系，各个客户的选择性供应或（极端）价格由于需求的强劲增长和个人经济生产的有限增加而增加，达到市场力量的非法滥用;

• Some concentration effects favoured by the crisis will change market conditions in the long term. Digital champions expand their market position while high street shops close. Amazon, for example, is expecting a considerable increase in online orders.

We expect competition authorities to monitor markets closely. Their ability to effectively police markets may be impeded temporarily, but this will not stop them from enforcing the competition rules at a later stage against those that took unfair advantage of the crisis. Moreover, some competition authorities appear to be even more active than usual. For example, on Sunday the Italian authority has issued interim measures against two undertakings for COVID-19 related practices.

在一份联合声明中,竞争当局belonging to the European Competition Network (ECN) already emphasized that they will monitor and sanction companies taking advantage of the current situation by cartelising or abusing their dominant position, in particular through restricting or increasing the cost of essential medical supplies as “it is of utmost importance to ensure that products considered essential to protect the health of consumers in the current situation (e.g. face masks and sanitising gel) remain available at competitive prices”.

在此背景下，如果您的公司享有强大的市场地位，您应该：

• monitor and keep under review your company‘s market position and significance;

• review any proposed price increases with care – can the increase be justified?; • not disadvantage or favour certain customers and buyers arbitrarily;

•以客观原因检查供应或拒绝的中断;和

•不需要不合理的产品和服务回报。

2.与竞争对手合作时需要考虑什么？

Particularly in times of crisis, there can be an increased need for cooperation between companies in order to cope with the extraordinary challenges in order to generate consumer benefits:

• The fundamental principles of antitrust law continue to apply and continued compliance should be assured within companies and trade associations alike;

•即使在危机时期，竞争对手之间的竞争对手之间的协议通常也不能合理;

• Cooperation between competitors is therefore still subject to strict requirements and is not permitted in each and every case.

However, the crisis provides some opportunities for cooperation among competitors, which may exceptionally be justified in light of the current crisis and the special circumstances, i.e. where the cooperation creates efficiencies to the benefit of consumers that could not be attained otherwise and which outweigh any adverse effect of the competitive restraint. In particular, this might justify joint innovation or tackling logistical issues to ensure the health of the population and continued supply with essential goods.

Competition authorities across Europe have jointly emphasized that they “will not actively intervene against necessary and temporary measures put in place in order to avoid a shortage of supply” due to the coronavirus. The authorities acknowledged that the current, extraordinary situation „may trigger the need for companies to cooperate in order to ensure the supply and fair distribution of scarce products“. Therefore, a cooperation may benefit from an exemption if:

• it follows the legitimate interests of ensuring supply (in particular of food and medicine);

•它仅限于在危机的背景下绝对必要的行动;和

•它只是暂时的。

公司需要根据符合本标准进行评估。ECN明确仅承认食品和医疗保健的“额外余地”。因此，在寻求在这些部门进行合作时，应特别注意，在运输部门已经确认合法申请领域。此外，没有任何限制，新的“自由”将不适用。当局强调竞争规则仍然存在，“仍然有关”。特别是，竞争当局将对可能限制或提高基本医疗用品成本的措施监测和反应。竞争当局将通过竞争规则不使用竞争规则来制裁公司不公平的情况。

The joint statement highlights that the national competition authorities, the European Commission or the EFTA Surveillance Authority will provide further guidance in individual cases. At least for any cooperation outside and beyond the supply of food and medicine it will be highly advisable to contact the authorities prior to implementation.

这些措施旨在确保供应食品和医疗设备：

•特别是卫生保健设施可以从短期缓解中受益，它可以是物流公司和食品批发商和零售商。但是，不得不假设整个部门将收到“自由通行证”;相反，根据竞争委员会遗体的最新声明，很明显，竞争当局将继续监督在特殊危机情况下是否有必要的合作和合作;

• cooperation will remain subject to competition law and an analysis of each individual case is required to determine whether the cooperation can exceptionally be entered into for a limited period of time due to the special circumstances. The scope of the cooperation must be limited to the necessary extent and sufficient compliance measures must be ensured in its design. The Bundeskartellamt has expressly invited companies to discuss the admissibility of certain measures; it is already longstanding practice of the Bundeskartellamt to accept informal consultation requests from companies – a practice that will be formalized with the 10th amendment to the Act against Restraints of Competition (GWB) when companies will be able to formally ask for official approval for cooperation.

3.What are the implications for merger control?

The crisis will inevitably lead to changes in the competitive landscape. In particular, distressed M&A and rescue mergers are likely to become more important. For failing companies, rapid review and clearance is of the essence. Given the impact of the crisis on competition authorities and their staffing levels, the parties to a merger may choose to involve them prior to the signing date.

任何此类方法都需要一些外交（在罕见地对其目前资源稀缺的稀缺认可）欧洲委员会的竞争局要求公司避免在可能的几周内提交合并通知。Bundeskartellamt还要求公司在每个案例中考虑是否需要在不久的将来提交给Bundeskartellamt的合并申请，或者这是否可能在以后的日期完成。欧洲各地的额外竞争当局取得了类似的公告。

在目前，公司通知在目前的情况下，他们应该预计竞争当局将使用他们的权力来阻止时钟或延长审查期间。例如，奥地利决定只开始于5月1日开始运行任何合并审查期。关于截止日期短期调整的类似审议正在包括法国在内的额外欧盟成员国。丹麦语和意大利竞争当局已经暂停了两周（从丹麦的3月18日起）或到4月16日（意大利）暂停了截止日期。但是，一些竞争当局（如荷兰语）也表明他们愿意从待机义务授予贬低，以便在融合缔约国的（之一）的生存能力所必需的情况下。

Merger parties should therefore generally anticipate delays in merger clearance and agree appropriate contractual provisions. This holds even more true as the crisis will also have an impact on the substantive assessment of transactions - forecasting market developments and the effects of a transaction on market conditions could become more complex in certain industries as the cards may are reshuffled during the crisis.

4.Outlook

Covid-19将远远超过近期的重大影响。但是，竞争当局也将在不太遥远的未来恢复正常运营。因此，公司应继续截止依从性努力，但也会评估任何在狭隘情况下提供的理由。

Companies should also be aware that some competition authorities also have wide powers in relation to unfair commercial practices, misleading advertising and unfair trading practices; and may be willing to make use of such powers to actively intervene against COVID-19 related practices (e.g. in Italy the competition authority has already done so in several cases).

Prior to the crisis, competition policy and draft amendments largely focused on the digital economy, notably online platforms with market power. The crisis will probably further strengthen some of these platforms. The call for intervention by competition authorities is therefore likely to become even louder in the near term.

托马斯G. Funke博士，Ll.m.，合作伙伴，奥斯本克拉克		Sebastian Hack博士，LL.M.，合作伙伴，奥斯本克拉克
Thomas Funke领导德国的竞争实践。他建议反垄断诉讼，竞争合规，分配和合并控制。他的经验包括欧洲司法法院和德国最高法院前的卡特尔赔偿诉讼。 代表领先的零售团体和国际索赔资助者，托马斯帮助了Akzo V委员会（T-345/12），CDC V委员会（T-437/08）以及ECJ氢过氧化氢（C-352/13）和BGH咖啡烘焙诉讼。 Thomas has been recognised as a leading expert for the EU competition framework for the motor vehicle sector. He has led international projects involving the sector-specific Block Exemption, aftermarket competition, telematics and the connected car. Thomas is regularly recommended by Global Competition Review, Legal 500 and JUVE. 在Bonn（法律博士），Caen，Lausanne，Berkeley和Virginia（LL.M.）学习后，他在科隆和布鲁塞尔培训。他于2002年加入了奥斯本克拉克，并成为2009年的合作伙伴。		塞巴斯蒂安建议客户对德国和欧洲竞争法的各个方面和合并控制。他代表并建议客户在欧洲委员会，德国联邦卡特尔办事处和法院之前的所有合并控制和竞争法方面。他定期向客户提供建立和设计的分销系统和合同，专注于数字配送模型和在线销售。 He has been short listed as one of Germany’s top competition lawyers by the prestigious “WirtschaftsWoche”. Sebastian regularly publishes articles on competition/antitrust law issues including commenting on the Coty and the ASICS case and he is author of the competition law section of the forthcoming Fashion Law Handbook (published by Beck). Sebastian has particular sector specific expertise in the retail and digital sector. 后,他在科隆的研究(博士文书期刊),匹兹堡h, New York and London (LL.M.) and his legal training (including stages at the German Federal Cartel Office and the European Commission), he began his career in the competition group of an international law firm in the Düsseldorf office (with further stages in London and Brussels) in 2013. He joined Osborne Clarke in 2016.