While we are washing hands, what is happening in the World of Competition Law

Att. Mert Karamustafaoğlu and Att. Elif Mungan

 

Introduction

The COVID-19 outbreak, which started as a strange epidemic in a remote city in China, and has been declared as a "Pandemic" by the World Health Organization on March 12, 2020, continues to trigger serious social and economic consequences on a global level.[1]

Today, the COVID-19 outbreak has spread to almost every part of the world. It has already made an appearance in approximately 180 countries, it has been transmitted to more than half a billion people, and has caused more than 35,000 deaths. Millions of people have been quarantined to prevent the epidemic, and billions of people have had to remain in their homes. Currently, this wide-scale isolation continues.

The COVID-19 outbreak has caused radical changes in economic activities. The fact that people have had to take a break from their social activities and stay at home has brought the sales of many undertakings to a standstill. In particular, excessive demand for fast moving consumer goods, pharmaceuticals, and cleaning materials has also caused unprecedented problems in terms of security of supply in these sectors. E-commerce companies are employing thousands of new employees as a result of the record increase in the demand for online shopping during this isolation period.

It is, therefore, not difficult to foresee that some issues will come to the forefront in the next few months. Due to the problems experienced in the supply of highly demanded products, the prices of some products have started to excessively increase. As well as people crushing each other for toilet paper, it is seen that the market shelves are almost looted and emptied. In addition, the claims that the supply shortage has stemmed from the stockpiling by some undertakings are frequently mentioned in the public agenda. Thus, there is intense pressure on the government to control prices and to prevent stockpiling in Turkey. This brings to minds a number of radical measures: It seems inevitable that issues, such as abuse of dominant position, excessive pricing, and refusal of goods will make intense appearances in the upcoming days.

Furthermore, it is necessary to ensure the security of supply, especially in terms of food, beverages and cleaning materials. For example, supermarket chains may have to cooperate, especially regarding the availability of goods. The referred undertakings can share each other's stock status, what products the consumers are constantly demanding, and the availability of these products, so that consumers can have access to them. In addition, they may be required to supply products to each other and deliver the goods to consumers.

Finally, the issue of how public services can be carried out without interruption has been discussed since hundreds of thousands of public employees are remaining at home. In terms of public services concerning competition law, there have been timely decisions made with regard to physical meetings. Both in the European Union ("EU") member states and the European Commission notifications it has been announced that the physical meetings have yielded its’ place to video conferences or telephone calls. It is also seen that the competition authorities of many states requested from the parties that merger and acquisition applications are to be postponed as much as possible. In this context, it is clear that especially regarding procedural periods, there is flexibility.

These short-term effects of the COVID-19 outbreak are actually just the tip of the iceberg. It is said that a major recession in the world economy may be experienced in the medium term, and thousands of companies may face difficulties due to this stagnation. Such a situation will lead to serious changes in the markets in terms of world trade and, as well, trigger countless concentration processes. Undoubtedly, this adds a completely different importance to the COVID-19 outbreak in terms of competition law.

COVID-19 and Europe

A quick glance reveals that the competition authorities’ enforced pre-caution and measures for the COVID-19 outbreak are almost similar. The Authorities, including the European Commission, the Federal Trade Commission (“FTC”) and the Competition and Markets Authority (“CMA”) have all taken measures with regard to revised working hours, avoidance of physical meetings and, in exchange, are supporting video-conference calls and urging electronic submissions.

The FTC has announced its temporary e-filing system which sets forth clear rules. Accordingly, in the United States, all filings must be submitted via this system, and all hard copy and DVD submissions are be suspended.[2] Moreover, the FTC has published its expedited Business Review Letter procedure which is expected to help facilitate businesses that wish to work quickly to address urgent public health and economic needs associated with the COVID-19.[3] The FTC has also highlighted that it will not tolerate businesses seeking to take advantage of consumers’ concerns and fears regarding the coronavirus disease, exigent circumstances, or financial distress.[4]

The European Commission has adopted a Temporary Framework to enable Member States to use the full flexibility as foreseen under state aid rules to support the economy in the context of the COVID-19 outbreak. The Temporary Framework enables Member States to ensure that sufficient liquidity remains available to businesses of all types, and to preserve the continuity of economic activity during and after the COVID-19 outbreak.[5] The recent state aid approvals have been announced on the European Commission web page.[6] The European Commission recently sent a draft proposal to extend the State aid Temporary Framework adopted on 19 March 2020 to Member States for consultation to support the economy in the context of the coronavirus outbreak. It announced that the package aims to enable Member States to support companies that develop, test, and produce much needed products to fight the coronavirus, such as vaccines, medical devices and protective equipment. Moreover, it also enables Member States to give support to save jobs in sectors and regions that are hit particularly hard by the outbreak, by relieving them from tax payments and social contributions, or giving wage subsidies.[7]

Furthermore, The Directorate-General for Competition (“DG Comp”) established a new webpage entitled “antitrust rules and coronavirus,” which outlines policies and antitrust measures related to the COVID-19 outbreak. The DG Comp emphasized the exceptionality of this situation, and stated that in order to ensure the provision of the scarcity of products and services to everyone, undertakings may need to cooperate.[8] Within this scope, it announced a “Joint Statement on the Application of the Antitrust Rules During the Current Coronavirus Crisis.”[9] The Statement provides guidance in terms of the application of the competition law, and the Authorities’ approaches to actions of undertakings during this exceptional period. According to the Statement, the ECN understands that this extraordinary situation may trigger the need for companies to cooperate in order to ensure the supply and fair distribution of scarce products to all consumers. It follows that in the current circumstances, the ECN will not actively intervene against necessary and temporary measures put into place in order to avoid shortages of supplies. In addition, it introduced an e-mail address that can be used by undertakings and lawyers to seek informal guidance on specific initiatives.

Apart from the above-mentioned measures, the CMA has announced that binding statutory deadlines apply to a significant proportion of the CMA’s work, and it intends to continue progressing its cases, making decisions and meeting deadlines – assisted in part by the adjustments it is already making to in areas, such as remote working. At the same time, it will continue to monitor timetables including, as permitted, extending statutory timeframes where necessary. It has added that any updates will be communicated to businesses involved in investigations and made public on the CMA website. The CMA has made clear that it is reallocating resources to help to ensure that the most urgent and the most critical work is performed on time. Moreover, the CMA has informed that it wants to ensure that traders do not exploit the current situation to take advantage of individuals. Accordingly, its’ warning has been placed on the CMA web page, stating that it will consider any evidence where companies may have broken competition or consumer protection laws; for example, by charging excessive prices, or making misleading claims about the efficacy of protective equipment. In addition, the CMA has reported that it will assess whether it should advise the Government to consider taking direct action to regulate prices.[10] On its web page, the CMA has made announcements regarding shut-down orders addressing companies’ prima facie misleading advertisements.[11]

The Italian Antitrust Authority has announced that it sent a request for information to the main online sales platforms and other sales sites about the marketing of hand sanitizers and disposable respiratory protection masks. It is understood from the announcement that the Authority has received numerous complaints lodged by consumers and associations concerning claims relating to the alleged effectiveness of these products in terms of protection and/or counteraction against COVID-19 and, the unjustified and significant increase in the prices of these products has been recorded, accordingly.[12] The Italian Antitrust Authority has also published announcements regarding shut-down orders addressing companies’ prima facie misleading advertisements. The Authority makes clear that it has identified some companies that are promoting certain activities to be, prima facie, misleading and aggressive, since the companies’ sites exploit consumers’ judgment, which has been affected by the constant increase in the numbers of people infected by COVID-19.[13]

COVID-19 and Turkey

When it comes to Turkey, it should first be put forward that the Turkish Competition Authority has not published any announcements with regard to its working hours, abstaining from physical meetings or electronic submissions.

The very first statement of the Turkish Competition Authority regarding the COVID-19 outbreak was on March 23, 2020.[14] In the mentioned statement, the Turkish Competition Authority emphasized COVID-19, which is a global epidemic, and stated that excessive price increases had been observed in the food markets, especially in the fresh fruit and vegetable market. It finished the announcement stating that this would affect consumer welfare, and any actions that would disrupt competition would be punished with the most severe administrative fines.

Two days after this announcement, a press release was issued by the President of the Turkish Competition Authority.[15] The announcement states that the fresh fruit and vegetable market has been closely monitored, although no increase in costs has been noted, “excessive price increases” have been applied, and these cannot be tolerated. The statement highlighted that administrative fines will be imposed at the upper limit, and the Turkish Competition Board (“Board”) will use its discretion to impose severe penalties. Therefore, the Turkish Competition Authority clearly stated that despite the struggle against the COVID-19 outbreak, those who follow “opportunism” and increase prices excessively, will have severe fines imposed upon them. This is a clear indication that the Board will take action on this issue in the near future.

Notably, in the past, the Turkish Competition Authority made announcements about fresh fruit and vegetable products, which were claimed to have experienced excessive price increases.[16] Following these announcements, the Turkish Competition Authority started investigations in markets, such as supermarket chains, and fruit and vegetable markets.

The background of the Turkish Competition Authority’s above-mentioned announcements is predicted, as excessive price claims have been made regarding a number of products that started to be applied after the COVID-19 outbreak. Indeed, the prices of food, health, and cleaning products have excessively increased since the middle of March when the COVID-19 outbreak gained traction in Turkey.[17] The increase in demand for products for protection against the epidemic, such as gloves, cologne, and masks made it difficult to find these products.

This situation started to affect many sectors. For example, in order to meet the need for ethyl alcohol for the production of cologne and disinfectant, the obligation to mix ethanol into gasoline has been suspended for 3 months.[18] Similarly, energy consumption fell to the lowest level of the year due to decreasing economic activities.[19] In fact, an announcement was made that cologne producers and the Ministry of Industry and Technology had meetings, and cologne producers guaranteed that they would not increase their cologne prices.[20]

Various precautions have been taken due to price increases made during this epidemic. In this context, the Ministry of Treasury and Finance, apart from the Ministry of Trade, have taken action, and some companies have been punished for excessive pricing.[21] Therefore, as seen in many parts of the world, the government has acted responsibly to ensure the security of supply in food and cleaning products, and to halt price increases in Turkey.

Turkish Competition Law and the Past Crises

Looking at the Turkish Competition Authority’s attitude to crisis periods experienced before will be enlightening for undertakings with regard to their actions that they will take in the very near future. Although the world has not experienced a crisis similar to the COVID-19 outbreak in recent history, a number of crises have occurred in Turkish competition law history. Therefore, it is opined that it would be helpful to list some of the crisis situations, and the Turkish Competition Authority’s responses to those.

The Turkish Competition Authority has closely examined markets with high price increases in the past 2-3 years due to both foreign currency increases and seasonal conditions. A cursory glance back in history shows that the increase in food and vegetable prices due to foreign currency changes and seasonal conditions triggered the Turkish Competition Authority’s review, and resulted in competition law investigations with regard to the relevant undertakings.[22] Following the food and vegetable market, the Turkish Competition Authority also conducted investigations in the markets of paper, fertilizers, and supermarkets that came up to the fore, with claims of high price increases having been made.

Another question that may be asked is what happens to the defenses of the investigated undertakings regarding their “crisis defenses?” Is the relevant defense a life safer for the undertakings, or ineffective in terms of sanctions? We see that the crisis defense has been used in a number of investigations.  For example, in the Seramik[23] decision, various claims related to the economic crisis at that time were put forward as a defense by the undertakings. As is clear from the evidence submitted, ceramic producers felt the effects of the severe economic crisis at that time. Upon the presentation of this situation as a defense, the Board did not accept the defense, because the principles adopted in the EU regarding crisis cartels had not complied with it. According to the criteria of the Board, a crisis cartel only must be formed to reduce excess capacity, it should not include price determination or quota agreements, and the public authorities must be informed. Afterwards, the “crisis defense” had been used by the undertakings in the decisions of Otomotiv ÖTV,[24] Tüpraş,[25] and 12 Banks,[26] but the defense did not prevent the detection of competition violations, and administrative fines were applied to the related undertakings.

Therefore, within the scope of the Turkish competition law application, it is clear that a crisis defense would not be a life safer for undertakings when determining the breaches of competition law, but the market conditions caused by the crisis are taken into consideration in determination of the amount of administrative fines.

In short, the crisis defense in times of fluctuations in the financial markets and financial crisis do not affect the determination of competition violation. Instead, the Board may see the crisis period as a reason for the reduction of administrative fines under certain conditions. However, again, it should be noted that a phenomenon, such as the COVID-19 outbreak that has made billions of people remain in their homes, and which has brought economic activities to a halt, has not yet been brought to the Board to date. Therefore, considering this one-time situation, undertakings should also be prepared for surprising responses by the Board.

Possible Changes After COVID-19

There is no doubt that after COVID-19 there will be some economic and social changes. Indeed, some of the changes have already begun. The changes in the world order have appeared to be advantageous for a number of sectors. For instance, the market power of e-commerce companies continue to increase as a result of billions of people having to remain at home. The video conferencing company, Zoom, has increased its value to 42 billion dollars.[27]

In addition to the difficulties experienced in terms of supply security, price increases will become inevitable for products that are highly demanded. However, this is controversial when this can be described as “excessive pricing” in terms of competition law, and seen as abuse of dominant position.

Another issue is the need to communicate, especially for supermarkets, hygienic product manufacturers, and e-commerce companies, to ensure the security of supplies required. For example, it is certain that supermarkets may have supply difficulties in terms of paper products, cleaning materials and canned products that are in great demand during these days. In such a situation, solutions like joint logistics and joint purchases amongst competitors may come to mind. In this case, it may be necessary to obtain information, such as stock volume, number of customers, and regional sales distribution, which will clearly bring with it the risk of exchange of information between competitors. It may be considered that the path of individual exemption is possible for any horizontal cooperation model to be developed in order to achieve this.

These difficult times may also result in the differentiation of market definitions caused by billions of people staying at home. Considering those consumers who can go to the nearest market or find the product they are looking for only on certain websites, it may be said that the old market definitions are no longer valid. In this case, the emergence of new dominant positions will be inevitable. Therefore, the risk of competition law for the referred undertakings is much higher than before. Indeed, the Italian Competition Authority has already started competition law investigations for two major e-commerce sites.[28] The Brazilian Competition Authority has also announced that it is investigating exploitative practices in the healthcare industry.[29]

Considering the size of the COVID-19 epidemic and its effects on the economy, it is certain that companies will be in need of restructuring in the very near future. Such a situation will create a huge wave of mergers and acquisitions. Therefore, it will create a new concentration movement whose effects are more important, especially in the long run, in terms of competition law.

Conclusion

Almost all countries in the world have been affected by the unfortunate COVID-19 outbreak. Similar to the remaining administrative institutions, the competition law authorities have tried to adapt to the situation with regard to their working methods and legal approaches. The measures with regard to flexible working hours, avoidance of physical meetings and, in exchange, support of video-conference calls and urging electronic submissions, have been put into place by almost all competition law authorities.

Apart from procedural measures, some authorities have made announcements regarding the measures are to be taken against opportunist undertakings taking advantage of the high demand of a number of products, misleading advertisements, and price increases. Also, the European Commission has made incredible efforts with regard to accelerated state aid procedures.

The Turkish Competition Authority, on the other hand, has hinted at the role it will play as to the future effects of the COVID-19 outbreak through two announcements. We understand that the Authority will act responsibly about price increases in food products, which are the basic need of the public, as in previous periods.

As a final comment, it should not be overlooked that the outbreak has not yet finished and, therefore, its economic and social effects have not yet been fully revealed. However, what is certain and inevitable is that in the future, the world will experience important economic and social changes. In this sense, experiencing changes and effects in competition law will not be surprising. The post-epidemic period may, indeed, meet us with new market definitions, new approaches regarding cooperation for security of supply, and new “crisis” defenses may emerge. For the time being, the best recommendation is as follows: Keep watching diligently and, of course, keep washing your hands!

[1] Corona virüsü (Covid-19) Pandemi ilan edildi! Pandemi nedir, tarihteki pandemiler nelerdir?, Milliyet, 17.03.2020.

[2] Premerger Notification Office Implements Temporary e-Filing System, Federal Trade Commission, 13.03.2020.

[3] Federal Trade Commission and Justice Department Announce Expedited Antitrust Procedure and Guidance for Coronavirus Public Health Efforts, Federal Trade Commission, 24.03.2020.

[4] FTC Chairman Joe Simons Outlines the Agency’s Approach to Safeguarding Consumers during the Coronavirus Pandemic, Federal Trade Commission, 26.03.2020.

[5] State aid: Commission adopts Temporary Framework to enable Member States to further support the economy in the COVID-19 outbreak, European Commission, 19.03.2020.

[6] State aid: Commission approves €200 million Irish scheme to support the economy in the current coronavirus outbreak, European Commission, 31.03.2020State aid: Commission approves €1.2 billion French “Fonds de solidarité” scheme for small enterprises in temporary financial difficulties due to coronavirus outbreak, European Commission, 30.03.2020.

[7] Coronavirus: Commission Statement on consulting Member States on the proposal to extend State aid Temporary Framework,European Commission, 27.03.2020.

[8] Antitrust rules and coronavirus, European Commission, 30.03.2020.

[9] Antitrust: Joint statement by the European Competition Network (ECN) on application of competition law during the Corona crisis, European Commission Network.

[10] https://www.gov.uk/government/news/COVID-19-sales-and-pricing-practices-during-coronavirus-outbreak, (Access date: 01.04.2020).

[11] PS11727 - ICA: Coronavirus, the shutdown was ordered of the website  http://testcoronavirus.shop/it  that markets a test for COVID-19 self-diagnosis, AGCM, 24.03.2020.

[12] ICA: Coronavirus, the Authority intervenes in the sale of sanitizing products and masks, AGCM, 27.02.2020.

[13] PS11722 - ICA: coronavirus emergency, the Authority orders the removal of any reference to preventive effectiveness against COVID-19 with respect to the products advertised and marketed on the https://carlitashop.com website and the associated Instagram page, AGCM, 22.03.2020.

[14] Rekabet Kurumu Kamuoyu Duyurusu, 23.03.2020.

[15] Rekabet Kurumu Başkanı Birol KÜLE'nin Yaş Meyve Sebze Fiyatlarına İlişkin Basın Açıklaması, 25.3.2020.

[16] Rekabet Kurumu’ndan patates ve soğan açıklaması, Sözcü Gazetesi, 30.11.2018. 

[17] Corona fırsatçıları, Sabah Gazetesi, 13.03.2020; Son dakika, Gıda fiyatlarındaki oyunla ilgili net açıklama: Bugün yeni bir olay var, Hürriyet Gazetesi, 11.03.2020.

[18] Kolonya üretimi için 3 ay benzine etanol karıştırılmayacak, Enerji Günlüğü, 17.03.2020.

[19] Günlük elektrik tüketiminde yılın en düşük seviyesi görüldü, Dünya Gazetesi, 23.03.2020.

[20] Teşekkür ve Bilgilendirme, T.C. Sanayi ve Teknoloji Bakanlığı.

[21] Fahiş fiyatlı satışlar için ihbar hattı!, TV100, 12.03.2020; Bakanlıktan virüs fırsatçılarına karşı önlem, Ekonomist, 11.03.2020; Koronavirüs Nedeniyle Piyasalardaki Haksız Fiyat Artışına İlişkin Şikâyet Hattı, Gelir İdaresi Başkanlığı, 13.03.2020.

[22] Rekabet Kurumu’ndan patates ve soğan açıklaması, Sözcü Gazetesi, 30.11.2018; Rekabet Kurumu'ndan patates ve soğan fiyatlarına takip, AA, 22.06.2018; Rekabet Kurumu'ndan kritik soğan açıklaması, Haber7-Ekotrent, 04.12.2018

[23] Seramik Decision, 03.08, 2007.

[24] Otomotiv ÖTV Decision, 18,04,2011.

[25] Tüpraş Decision, 17.01.2014.

[26] 12 Banks Decision, 08.03.2013.

[27] Video konferans uygulaması Zoom'un değeri 42 milyar dolara yükseldi, T24, 31.03.2020.

[28] PS11716-PS11717 - Coronavirus, l’Autorità avvia istruttoria nei confronti di Amazon e Ebay per claim ingannevoli ed eccessivi aumenti dei prezzi, AGCM, 12.03.2020.

[29] http://www.cade.gov.br/noticias/cade-abre-investigacao-no-setor-de-produtos-medicos-farmaceuticos (Access date: 27.03.2020).