THE IMPACT OF COVID-19 ON COMPETITION LAW 109 (the substantive legal standard). Where national aid is not properly notified and approved or not in line with the EU rules, complainants can seize the national courts and seek temporary reimbursement pending the outcome of the Commission’s assessment. Where the government intervenes in the form of capitalisation (short of nationalisation), there will likely be counterparts. The support to the financial services industry after the financial crisis of 2008 came with conditions, including dividend bans, limits on management remuneration or the requirement to spinoff non-core activities. Thus, State support does not always come for free. Note that in recent years, Europe has seen a surge in foreign direct investment control. Historically, State intervention to prevent take-overs by third country buyers (private or State-owned) focused on “critical industries” such as companies operating in technology, defence, telecommunications and infrastructure. Recently, the French Commissioner Thierry Breton made a statement that governments should also protect companies in the tourism sector. Where the State acquires a golden share in such companies, this will be even easier. These measures nevertheless place a question mark on the principle of a globalised economy. Normally, no company can be bought unless the owner is willing to sell it. Limiting the international flow of capital by giving the government a right of first refusal would also have a price, both in the short and long term. A proper balance needs to be found. III.2.2. MERGERS The crisis may enhance the need for consolidation. There will be more mergers after this crisis because more companies will face insolvency or bankruptcy. As a general rule, the acquisition of a struggling company can be facilitated by the “failing firm” defence. It can be expected, on the one hand, that the realistic forecast at the heart of merger control will be adapted to take into account the COVID-19 consequences. On the other hand, it should not be expected that regulators will stop scrutinising mergers for their anticompetitive potential just because we have a crisis, whatever the magnitude. The European Competition Commissioner, Margrethe Vestager, has already made a statement along these lines. Thus, there will be more flexibility in this field but it will not be excessively different. Please keep in mind that even transactions that do not raise substantive issues still need to be notified if they meet certain formal criteria.
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