110 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY III.2.3. ANTITRUST As stated above, antitrust has specific rules regarding the ways companies, including competitors, can collaborate lawfully under relatively stringent conditions. The European Commission has already adopted a Temporary Framework on Antitrust. This document allows competitors supplying “essential” products and services to engage in forms of collaboration that are clearly forbidden under standard rules. The obvious objective is to allow effective coordination where necessary to ensure the availability of such essential products. An example to give is the coordination among pharmaceutical companies as to who makes which drug. It is easy to imagine that masks and ventilators may also qualify as essential. Food or toilet paper, on the other hand, do not seem to be in scope, and, by analogy, it is unclear whether any product or service in the tourism sector would be. Given the institutional framework of competition law described above, companies better assess any departure from standard patterns that have been vetted by their legal advisors. The Commission allows companies to seek ad hoc guidance in individual cases, but a more cautious way may be to seek independent legal advice covered by legal privilege before knocking at the Commission’s door. To avoid fines, it is imperative that companies do not overstep boundaries. Last but not least, competitors need to beware of “crisis cartels”, and a US enforcer has recently forecasted that we will see more cartels in the years to come. Indeed, crises call for “solidarity” and organised approaches. However, regulators have shown little sympathy for cartels born “out of need, not greed”. The noblest objectives do not justify cartels and trigger high fines, damage claims and reputational damage. Two examples to briefly illustrate this: First, in the 1990s, German household moving companies that specialised in moving households for US military personnel suffered from the withdrawal of the US Army following the fall of the Berlin wall. They designed a system of subcontracting so that the winner of a tender could share work with the losers. This was investigated by the Bundeskartellamt, who found that there were elements of bid-rigging. Second, in the late 1990s, air-fuel prices increased and rose dramatically, a crisis such that airlines would scratch the paint off their planes to save money. IATA, a respectable organisation, suggested that airlines should introduce a fuel surcharge to be shown on the tickets, to show customers that they were not responsible for the price increases, and the airlines implemented the idea. However, any new tariff applied at any airport requires approval by the airport
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