The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

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. 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