104 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY threatened the generic companies that their product would infringe the secondary patents that the originator had obtained for its blockbuster product, whose original patents were about to expire. There was genuine uncertainty on both sides about the patent validity and infringement, hence the settlement. The generic undertaking agreed to delay its market entry, and the originator paid a compensation in return. The regulators labelled these agreements “pay-fordelay”. In law school, we learned that the sole purpose of a patent is to ensure exclusivity, and that settlement of lawsuits is always a good thing, provided the dispute is genuine and not a sham. The European Commission itself looked at such an agreement, in 2004, and found it to be in a grey zone not warranting enforcement but, in 2013, it found that the same agreement was a serious infringement of competition law. Turn-arounds, such as the one just described, also reflect that competition policy matters as much as competition law. Competition authorities identify new theories of harm, resetting their limited enforcement priorities from time to time. While any regulator can only handle a small number of cases per year, there are many regulators around the world (in Europe, the European Commission shares enforcement with the national competition authorities of the Member States). Competition authorities are well connected and collaborate extensively, which makes competition law a very globalised discipline in which some 90% of the rules and concepts are the same all over the world. II.2. The Pillars of Competition Law II.2.1. ANTITRUST There are three pillars of competition law: Antitrust, Mergers and State aid, and, before the virus, Antitrust was probably the most important one. Antitrust is the part of competition law which focuses on market conduct of one, two or more companies that have the potential to restrict competition to the detriment of consumers. Conduct involving two or more companies can occur at a horizontal level, i.e. between competing companies. Contact between competitors is most likely to result in competition law infringements. The most anticompetitive forms of horizontal conduct are price-fixing and geographic market allocation, which usually come with heavy fines. Everyone intuitively understands that secret meetings in smoke-filled rooms of lavish hotels, with competing managers scribbling secret arrangements in coded language on bits of paper to be hidden in their shoes, are not lawful behaviour. However, few understand that – at least in Europe – competition law is opposed to any
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