Feeding the nation in times of crisis: the relaxation of competition law in the United Kingdom

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.</jats:p

The boundary of Article 81 of the EC treaty 'vis-à-vis' vertical agreements

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Health Care Services and EU Competition Law

This chapter investigates how, within a number of European Union (EU) Member States, competition law has been used to address problems of market power in the healthcare services sector. It summarizes the relevant EU and national competition laws and considers the experience of applying those laws to providers of healthcare services. The chapter is chiefly concerned with healthcare services in England, although examples are drawn for other EU Member States. Examination of the English experience provides a view of the use of competition law to address market power problems in most elements of the health system matrix. The chapter then considers three challenges that emerge from that experience of using competition law to address problems of market power in healthcare service markets. The first challenges the applicability of competition law to healthcare service providers operating in each or every element of the healthcare system matrix. The second, accepting applicability, questions the appropriateness of the substantive rules to healthcare services. The third, a battle of authority and autonomy, considers whether decisions made by healthcare service providers should be subject to external review and the type of review that competition law offers