THE IMPACT OF COVID-19 ON COMPETITION LAW 105 “exchange” of commercially sensitive information reducing the uncertainty about the competitors’ future market conduct. This includes unilateral passing on of information, and the simple talk at the bus stop between two former colleagues now working for competitors can lead to the revelation of commercially sensitive information. Imagine the following exchange: Person A: “Did you enjoy the summer holidays?” Person B: “No, I had to work as we plan to launch our new product next week.” Compliance training can raise awareness of employees, and appropriate reporting processes can mitigate the regulatory risks resulting from anticompetitive conduct. Note, for the sake of completion, that parallel behaviour, in the absence of any collusive contact, does not amount to anticompetitive coordination. Vertical conduct between two or more companies that are not competitors because they operate at different levels of trade can also infringe competition law. Resale price maintenance is the most obvious example, and recent investigations have focused on multi-favoured nation-clauses that reduce price competition. The restriction of internet sales is also largely prohibited. Other forms, such as exclusivity arrangements or non-competes, may be anticompetitive depending on the market situation, if companies have market power and the conduct reduces competition at consumer level or risks to foreclose competing suppliers. In the European Union, the supplier cannot impose export bans on buyers, except under limited circumstances. As a rule, the supplier can only limit active sales into territories or to customer groups that the supplier has exclusively allocated to another buyer or reserved to himself. Another tricky issue is the principle that the buyer of an input product cannot be forced to process it – he can thus resell it as is. Not every restriction of competition is unlawful. For instance, under EU rules, a restriction of competition can be outweighed by quantifiable and demonstrable efficiencies (the rough equivalent to US’s “rule of reason”). Companies need to prove that their anticompetitive conduct is justified because of outweighing efficiencies. The benchmark is high. A cartel is very unlikely to be justified. Efficiencies typically include consumer benefits such as new products, improved products, improved service or innovation; it is less clear whether parties can invoke other policy goals, such as sustainability, as a proconsumer efficiency. The current Commission is very green if not greener. However, a company that relies on environmental benefits to justify conduct
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