On March 29, the European Commission published a second comfort letter to ensure that participating in a “Matchmaking Event” concerning production of COVID-19 vaccines does not raise competition law concerns.
The European Commission played host to the “Matchmaking Event – Towards COVID-19 vaccines upscale production,” coordinated by Ecorys Europe EEIG-GEIE (main contractor and signatory for the European Cluster Collaboration Platform consortium) and SPI (a consortium partner responsible for the operational organization of the event), held virtually on March 29 and 31. This forum, in which over 300 companies participated—some direct competitors and others at different levels of the supply chain—served as a platform for companies with production capacity to contact vaccine developers and manufacturers to improve the planning of current and future vaccine production in Europe.
The letter issued by the Commission identifies the principles that must be respected to ensure that the organization of and participation in the Matchmaking Event and the possible exchange of information that may take place in this context comply with article 101 of the Treaty on the Functioning of the European Union (TFEU).
In particular, the Commission states that any exchange of sensitive commercial information must be limited to what is essential to effectively solve the supply problems related to the COVID-19 pandemic.
Furthermore, for meetings between direct competitors, the Commission adds that companies (i) must not share any type of sensitive commercial information on their rival products and, specifically, information on prices, discounts, costs, sales, commercial strategies, expansion and investment plans, customer lists, etc.; and (ii) must keep a record of which matters they have discussed.
However, if direct competitors consider it essential to exchange confidential commercial information to increase the production or supply of COVID-19 vaccines, they will have to contact the Commission at least 24 hours before engaging in any exchange of information in the context of the Matchmaking Event.
The Commission also established that the co-organizers of the event (Ecorys Europe EEIG-GEIE and SPI) must keep a record of the companies that have met during the event and make it available to the Commission when it requests it.
Finally, the Commission highlights that the comfort letter:
- does not cover any price discussion between direct competitors or any other possible cooperation between them other than exchanging non-confidential information in the context of the event; and
- does not apply to subsequent cooperation between non-competing companies as a result of the event, for which companies will remain required to self-assess the compatibility of those agreements with EU competition law.
This is the second time the Commission has published a letter of this kind in the scope of the Temporary Framework Communication. The Temporary Framework Communication offers competition guidelines to allow the cooperation of companies in view of emergency situations related to the current health crisis. In our post of May 4, 2020, we discussed the first comfort letter sent by the Commission to the Medicines for Europe association on a cooperation project between manufacturers of pharmaceutical projects to improve the supply of some essential hospital medicines to treat seriously ill COVID-19 patients.
The Commission reiterates that it is prepared to offer guidance on specific initiatives for cooperation at European level that must be applied quickly to effectively deal with the COVID-19 pandemic, and on which there are doubts regarding their compatibility with competition regulations. However, the Commission states that any conduct aiming to “exploit the crisis as a ‘cover’ for engaging in collusion or other anticompetitive behavior will not to be tolerated.”