COVID-19 | Competition: Guidelines for Associations in the Financial and Pharmaceutical Sectors

Competition rules are no stranger to the situation created by the pandemic we are facing. On the application of these rules in the current context, please see the information provided by Abreu Advogados in its COVID-19 Helpdesk, which you can find here:

COVID-19 | FAQs by Competition, Regulatory and EU team

COVID-19 | Competition: Exceptions in times of exception

The PCA (Portuguese Competition Authority) announced on 21 May 2020 that it had issued guidelines addressed to ANF (National Association of Pharmacies), APB (Portuguese Banking Association) and ASFAC (Association of Specialized Credit Institutions), recalling that compliance with competition rules is always more beneficial for companies and consumers, especially in crisis situations.

Regarding the financial sector, the PCA warned that credit institutions should not exchange sensitive commercial information in order to restrict their freedom to operate in the market. Furthermore, it stated that the eventual cooperation between credit institutions for the implementation of a private moratorium regime should not prevent each institution from creating more beneficial conditions for consumers, if it so chooses.

As far as the pharmaceutical sector is concerned, the guidelines were about a proposal by the ANF regarding the maximum margin to be applied in the sale of individual protection products against the pandemic and which would later be subject to legislative intervention.

As a general rule, associations of undertakings, by promoting meetings (broad sense) between competing undertakings, should not encourage cooperation between them through their activities and decisions, even if not binding, so as to distort the competitive game.

However, in the current pandemic context, certain temporary practices of cooperation between undertakings may be allowed, in response to emergency situations arising from the COVID-19 outbreak – see information on exceptions above.

Both the PCA and the European Commission have offered to provide informal guidance to undertakings on the proportionality of their individual initiatives with the above objective. To this end, the following information should be provided: (i) firm(s), product(s) or service(s) concerned; (ii) scope and set-up of the cooperation; (iii) aspects that may raise concerns under competition law; (iv) benefits that the cooperation seeks to achieve, and (v) why the cooperation is necessary and proportionate.

In any case, the rule remains the undertakings self-assessment.