On March 25, 2021, the European Commission (hereinafter, the “Commission”) issued a “comfort letter”[1] on the compliance of the “Matchmaking Event – Towards COVID-19 vaccines upscale production” (hereinafter, the “Matchmaking Event” or the “Event”) with EU competition law. In its letter the Commission addressed the compatibility of the exchange of commercial information with Article 101 of the Treaty on the Functioning of the European Union (TFEU). This is the second comfort letter on cooperation between competitors in the pharmaceutical sector that the Commission has publicly issued. On April 8, 2020, it also published a communication[2] setting out a temporary framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak. The Italian Competition Authority (AGCM) issued a similar communication[3] shortly afterward (in May of the same year[4]).
The Matchmaking Event was aimed at encouraging participating companies to create new cooperation opportunities to address, to the best of their abilities, the bottlenecks in the current production and supply of COVID-19 vaccines.
The Event, which took place online on March 29 and 31, 2021, was co-organized by Ecorys Europe EEIG-GEIE, the main contractor and signatory for the consortium of the European Cluster Collaboration Platform (ECCP),[5] and SPI, a consortium partner responsible for operational organization (hereinafter, the “Co-organizers”). Notably, the Co-organizers organized the Matchmaking Event on behalf of the Commission as the host of the event.
Based on the comfort letter, the Matchmaking Event was intended for developers and manufacturers of vaccines to match demand with supply of potentially scarce inputs by exchanging confidential commercial information with the producers of relevant raw materials and other companies with relevant production capacity.
With its comfort letter, the Commission reassured participating firms that organization of and participation in the Matchmaking Event do not raise concerns under Art. 101 TFEU, provided that:
- during private matchmaking meetings between participating firms (whether or not they are competitors), any exchange of confidential business information is limited to what is indispensable to address effectively the supply challenges linked to the COVID-19 pandemic;
- during private matchmaking meetings with each other, direct competitors do not share any confidential or sensitive business information regarding their competing products (e.g., information about prices, discounts, costs, sales, strategies, expansion plans and investments, and customer lists) and they keep a record of the topics they do discuss;
- if direct competitors do believe that exchange of the aforesaid confidential business information in relation to competing products is indispensable, they should contact the Commission for specific guidance at a specific address at least 24 hours before engaging in any such exchange in the context of the Matchmaking Event;
- the Commission also requires the Co-organizers of the Matchmaking Event to keep a record of the companies that have met during the Event for the term of the contract,[6] and they must make it available to the Commission upon request.
Finally, the Commission reaffirmed its willingness to provide guidance to companies, associations, and their legal advisors on the implementation of cooperation initiatives of EU interest that are necessary to tackle the COVID-19 pandemic, but may raise concerns of compatibility with EU competition law.
[4] See our previous article on this topic in the June 2020 issue of our Life Sciences Newsletter here.
[5] Service contract with the Executive Agency for Small and Medium-sized Enterprises (EASME): ECCP, term of the contract December 9, 2019–December 8, 2021.
[6] Upon expiration of the contract, the Co-organizers shall transfer these data and records to DG GROW.
