476 COMPETITION LAW IN TOURISM To be more exact, the CA issued guidelines to APB (Portuguese Banking Association) and ASFAC (Association of Specialised Credit Institutions) in the context of the adoption of moratoria to protect credit agreements. In the document, the CA reminds them that associations should refrain from sharing information between members that are not strictly essential, adequate and proportionate for the definition of the credit moratorium regime of a temporary nature and founded upon the response to the present crisis170. Some concerns regarding antitrust matters were also expressed in a joint statement by the European Competition Network (“ECN”) on the application of competition law during the COVID-19 outbreak171, of which the CA is part of. Although acknowledging that the emergency situation of the COVID-19 crisis may trigger the need for companies to cooperate, in particular to ensure supply and distribution of scarce products, the ECN is very clear when stating that it will not hesitate to intervene and act against companies taking advantage of the situation by cartelising or abusing their dominant position. As such, the ECN reiterates that the objective of ensuring a level playing field between companies remains despite the COVID-19 crisis. F.4. Possible relevant topics in merger control The unprecedented nature of the economic crisis stemming from the COVID-19 outbreak in a breadth of sectors is widely acknowledged, particularly in the tourism sector. Though it is not clear cut what the timeframe for achieving 2019’s figures in this sector is, it is undisputed that players need to use all the existing mechanisms and arguments to avoid the collapse of companies and of the economy. In a time when it is expected for stronger corporate groups to take the opportunity to acquire undertakings with a lower market value going through severe problems, the so-called “failing firm defence” gains new relevance when reflecting on future strategies in these challenging times. More precisely, the European Commission may decide that an otherwise problematic merger is nevertheless compatible with the common market if one of the merging parties is a failing firm. “The basic requirement is that the deterioration of the competitive structure that follows the merger cannot be said to be caused by the 170 The CA’s press release is available at: http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/ PressRelease_202007.aspx. 171 Communication 05/2020 of the Portuguese Competition Authority, dated 23 March 2020, available at: http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Paginas/Comunicado_AdC_202005. aspx?lst=1&Cat=2020.
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