Enforcement of Competition Law in Times of Crisis: Is Guided Self-Assessment the Answer?

Abstract

One common criticism of the EU’s competition regime is that it hinders adequate
mitigation of crises by preventing a collaborative response to the problem. We
suggest that this view is incorrect. We suggest that a collaborative response is
unlikely to effectively mitigate most problems. Yet some forms of cooperation can
facilitate a crisis solution. These may be at the margin of legality, giving uncertainty
as to whether the proposed practice is permitted. With the possibility of significant
penalties for competition infringements, most undertakings will not engage in such
cooperative practices. There are significant legal and institutional impediments to
providing this Guidance. Such gaps lead to uncertainty found in the nature of the
EU competition rules and in NCA practice. We argue that the means forward is
with greater engagement and guidance by the Commission and NCAs.

Keywords: Enforcement, Competition Law, Regulation 1/2003, Guidance, Crises, Sustainability

JEL Classification: D42, D43, H12, L21