From Crisis Cartels to Covid-19 State Aid and Cooperation: The Non-Exceptionality of Crisis Management by EU Competition Law

As the COVID-19 crisis unfolded, the European Commission (Commission) started labelling its enforcement of European Union (EU) competition law as exceptional. A Temporary Framework for State Aid was issued for the ‘current exceptional circumstances’ describing multiple types of aid dealing with the crisis that Member States could grant under Article 107. Over €1.5 trillion was authorised by the Commission in 2020, leaving the aid granted during the financial crisis far behind, and more followed until the framework’s scheduled end in June 2022. A Temporary Framework for Cooperation was also issued in ‘underlying exceptional circumstances’, detailing how undertakings cooperating to address product shortages could avoid being sanctioned under Article 101. Before this framework, the Commission had joined an European Competition Network (ECN) statement of non-intervention against cooperation to ensure ‘supply and fair distribution of scarce products’. The framework was withdrawn in October 2022 but was yet another escalation from the financial crisis, when the Commission signalled that rules continued to apply as normal. These two temporary frameworks were soft law, based on the Commission’s discretion to interpret and apply competition rules. Nonetheless, they created a generalised sense that a set of exceptional rules allowed aid and cooperation that would normally be prohibited.