In May 2020 we noted that the European Commission had resurrected the 'comfort letter' mechanism to help battle the Covid-19 pandemic. As we explained in that blog post, comfort letters are a means for companies to obtain confirmation from the regulator that a proposed course of action will not infringe competition law.
The Commission has now issued another comfort letter in respect of a 'Matchmaking Event' organised so that manufacturers of raw materials and companies with production capacity can engage on a confidential basis with the developers and manufacturers of Covid-19 vaccines, to try and address issues of scarce supply.
Here are a few interesting points to take away from this new letter:
- It all happened quite quickly. The Commission was contacted on 19 March 2021 and granted the letter on 25 March.
- The scope is quite limited. The Commission has confirmed that the event will not raise concerns only insofar as information exchanges are "limited to what is indispensable for effectively resolving the supply challenges linked to Covid-19 pandemic".
- It's (understandably) even more limited for direct competitors. Direct competitors cannot share "any confidential business information regarding their competing products, in particular information relating to prices, discounts, costs, sales, commercial strategies, expansion plans and investments, customers list, etc.". If direct competitors believe sharing that kind of information will be indispensable to finding a solution for scaling up vaccine supply, they are told to contact the Commission for specific guidance.
- Records must be kept. The organisers must keep a record of all meetings that take place during the event. Direct competitors must keep a record of any topics discussed in their meetings.
- For any subsequent co-operation, you're on your own. The comfort letter only applies to the matchmaking event; for any subsequent co-operation arising out of the event, companies are still required to self-asses their compliance with competition law.
The letter ends with the warning that the Commission will not tolerate any conduct "which seeks to exploit the crisis as a 'cover' for engaging in collusion". Overall, the letter may encourage companies to participate in the event. However, its limited scope means that any companies who want to collaborate following the event will still have to think carefully about how to safeguard against potential competition issues.
the objective of the event is to bring together relevant EU-based assets of companies that could contribute to accelerating and ramping up of the production of COVID-19 vaccines.