On 27th March 2020, the Government passed emergency legislation to amend UK competition law to help healthcare, grocery and ferry companies maintain the provision of essential goods or services during the COVID-19 pandemic. The emergency legislation, made up of three Orders, excludes certain activities from the UK ban on anti-competitive agreements and practices contained in Chapter I of the Competition Act 1998.
The Orders only apply to activities undertaken in relation to the Covid-19 response. Any form of information sharing in relation to costs and pricing between businesses is expressly excluded, and all relevant agreements must be notified to the Secretary of State within 14 days of being entered into, if they are to benefit. EU competition law still applies but only to agreements capable of affecting trade with the EU.
The Orders are as follows:
The Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/368). This Order excludes certain agreements relating to information sharing, staff sharing and deployment, joint purchasing, sharing facilities and division of activities between independent healthcare providers and between independent healthcare providers and NHS bodies from the Chapter I prohibition. This will allow health care companies to ensure the continuity of supply of essential healthcare products and services to the NHS.
The Competition Act 1998 (Groceries) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/369). This permits (a) agreements relating to co-ordination about quantities and ranges of groceries, staff deployment, stock levels, store opening hours and the supply of goods to vulnerable customers between grocery suppliers and (b) certain agreements relating to sharing information on staff availability, storage capacity and vehicles and co-ordination of staff deployment between logistic service providers to ensure continuity of food deliveries.
The Competition Act 1998 (Solent Maritime Crossings) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/370). This provides flexibility for operators of ferry services between the Isle of Wight and mainland UK.
The exclusions from the Chapter I prohibition are backdated to apply to agreements relating to relevant activities from 1 March 2020 in relation to health services and groceries, and 16 March 2020 for Solent crossings, until a date to be declared by the Secretary of State.