Antitrust law in the corona crisis (2): Suppliers / Distributors

Antitrust law also applies in times of crisis. But: Antitrust law allows companies the necessary flexibility to react to the challenges of the corona crisis. One such reaction is reaching bilateral agreements with suppliers and distributors.

The corona crisis is causing legislators and public authorities to intervene in market developments. Their measures may limit or even eliminate companies' scope for competitive action. Manufacturers who are prohibited by law or by an administrative order from offering their goods outside Germany no longer have any scope for competitive action in this respect. If a manufacturer imposes corresponding contractual restrictions on its distributors, then these are of a declaratory nature, and are thus unlikely to give rise to antitrust concerns.

Crisis-related restrictions that manufacturers impose on their suppliers or distributors can also be exempted under antitrust law without such a strict legal requirement: For example, guaranteeing the security of supply may justify exclusive supply and purchase obligations. Temporary territorial exclusivity for the benefit of a customer is conceivable to the extent that it is necessary to open up or ensure the continued supply of a market. However, antitrust law demands to limit the scope of such restrictions on suppliers and distributors to the extent that is necessary to guarantee security of supply or to open up a market.

The prohibition of price fixing remains in force even in times of crisis. Anyone who fixes downstream prices for crisis-related scarce goods by imposing fixed or minimum resale prices on his distributors is violating the price fixing prohibition. Antitrust authorities have already announced that they will investigate price increases for goods in short supply due to the crisis. In such cases, hefty fines may be imposed. In contrast, maximum prices are still permissible. This allows the implementation of crisis-related sales promotions.

Since the corona crisis does not suspend any obligations under antitrust law, the following also applies to crisis-related measures in relation to suppliers and distributors: Review and document the admissibility of such measures under antitrust law in a self-assessment!

BEITEN BURKHARDT's antitrust lawyers also provide support for your company in the corona crisis. Please contact Dr Christian Heinichen or Christoph Heinrich.

Further support is available here "Corona Informationscenter" in the BEITEN BURKHARDT Informationcenter.