COVID-20: The Comfort Letter Is Dead. Long Live the Comfort Letter?

Abstract

On 8 April 2020 the European Commission issued its first comfort letter for a competitor collaboration in the context of its Temporary Framework in response to Covid-19. The issuance of this comfort letter is remarkable, particularly given the paradigm shift from the system of comfort letters before 2003 under Regulation 17 towards a system of self-assessment under Regulation 1/2003. While the EC has since ushered in comprehensive guidance – via block exemptions and guidelines – to assist businesses with the task of self-assessing their compliance with the EU competition rules, such guidance still leaves too much room for error und uncertainty. This is notably the case with respect to non-full function joint ventures, and in particular those that are long-term, complex and high in value. A corollary of this is that, rather than enter into pro-competitive collaboration for fear of antitrust repercussions, companies may prefer to desist. With a view to achieving enhanced legal certainty for such joint ventures, and capitalizing on the good work it is currently doing under the Temporary Framework, the EC may wish, therefore, to give meaningful thought to the introduction of a more generalized system of comfort letters – at least for non-full function joint ventures. COVID-19, Temporary Framework, comfort letter, non-full function joint venture, Regulation 17, legal certainty, Regulation 1/2003, Article 101(3), self-assessment, Informal Guidance Notice