• Introduction
  • Abuse of dominance
  • Anti-competitive agreements
  • Misleading of consumers
  • Conclusions


There have been several excellent assessments of the various legal aspects of the novel coronavirus epidemic (or, to be precise, the epidemic of the COVID-19 disease stemming from the SARS-CoV-2 virus), including the employment law, the insurance law, the civil law and data protection law perspectives. I felt compelled to ask: is my own area of expertise, competition law, relevant at all to this subject?


The answer is (obviously…) in the affirmative and not only due to the recent decisions of the world’s most famous cartel…in fact, even at the very preliminary level, there are at least three points worth mentioning.

Abuse of dominance

First, the epidemic could have a relevance from the perspective of the abuse of dominance. The epidemic already produced visible shortages of certain products, which – in the competition lawyer’s mind – immediately pops up the notions of refusal to supply and unfairly high prices: both of which are prohibited practices for a dominant undertaking. Is it possible that a certain product is not available in stores due to the fact that the only producer of that product is not willing to put its stocks onto the market? Is it possible that there is not real justification for another product’s tenfold price hike in the local village store (which could only be purchased otherwise at the hypermarket located at the faraway regional capital)? And finally: is it possible that the license agreement for a drug does not allow for its novel use, which use could be vital to combat the epidemic or its side-effects? In this respect, it is important to bear in mind that –- although all of these scenarios raise important questions, an infringement from a competition law perspective could only be established if two conditions are met under European competition law (and under most national laws):


  1. a dominant position can indeed be established on the relevant market (e.g. if the given supplier is indeed such a “competition law elephant” that is capable of acting appreciably independently from the other market players, suppliers and consumers), and


  1. there is no objective justification for the given conduct (e.g. if the local village store was compelled to raise its price due to the increase of the prices of its suppliers).

Anti-competitive agreements

Second, any joint action taken by market players as a result of the epidemic would also be very closely scrutinised by competition authorities. Clearly, any agreement between competitors –– aimed at avoiding price reductions to ensure the well-being of market players at the time of crisis would surely be regarded as illegal under the prohibition of anti-competitive agreements. The same would apply to an arrangement ensuring a joint and coordinated reduction of capacities or the keeping of the status quo in terms of geographic areas. These so-called “crisis cartels” - regardless of the seemingly good or even naïve intentions of the participants - have generally not been well accepted by antitrust authorities as they would destroy the very essence of competition for consumers, which is even more important in such turbulent times. Additionally, even a call for such anti-competitive measures by a large market player could be an issue, if it could be established that there was a meeting of minds between this market player and others.


Misleading of consumers

Finally, various competition authorities (such as the German, the Dutch or the Hungarian authority) have a competence to enforce consumer protection laws such as those against the misleading of consumers. Now any communication by a company about its products or services that are in high demand during the epidemic needs to be crafted extremely carefully: for example, a promise of an effect to cure illnesses (despite the fact that the product in question not a registered medicine) or a . These could all be regarded as unfair commercial practices, regardless of whether the statement was made by a small pharmacy, a regional webshop or a large retail chain.


Competition authorities would thus be in a rather difficult situation when they will have to assess and evaluate epidemic-related conduct based on the various complaints or public comments they receive.

  • Especially in cases concerning abuse of dominance there are sometimes extremely complex competition-economics issues to decide on, for example, the establishment of the relevant market for a given product. Although in this respect, some say that the question whether one product is interchangeable with another could be easily answered by simply observing the consumers stockpiling in supermarkets: if shelves for canned product X are emptied, would shoppers turn to canned product Y immediately or would they go to another store to look for product X?
  • At the same time, the public will likely expect swift decisions to be taken, quicker than the “usual” pace of events. A possible solution could be the use of interim injunctions: although these are indeed exceptional measures, there is some fresh experience in this respect, for example, at the European Commission itself (although certainly not yet related to the epidemic).
  • Finally, we have already seen express calls by market players to temporarily “suspend” the application of competition laws in certain areas (e.g. to enable the coordination of shopping deliveries): it remains to be seen if such calls are indeed warranted and if EU or national legislators take any action based on them.