First one: Coronavirus & competition – any potential link?

Second one – close related with the first one: Breach of

Competition Law? “Price gouging” or not?

Facts: As a result of the fear generated by the Coronavirus outbreak in Europe in the last past days, the demand for protective masks has risen, including in Romania. The same goes for

the prices… higher and higher…

So? What is this when looking through competition lens? Do we have

a breach of Competition Law? Short answer: Maybe…

When: Let’s see!

The increase of the prices in a crisis is known as “price gouging”

– the increase of prices of goods & services to a level which is deemed to

be unreasonable and unfair.

The feeling of unfairness comes not from the increase in itself,

but from the context in which such price increases occur

(e.g., after

hurricanes & other natural disasters – thanks God we do not have (yet)

hurricanes) and the products they target – basic necessities.

In some way, price gouging makes us think about pure

exploitation - of the consumer mainly.

USA has some experience on this - but they have hurricanes

- some states have special rules on this

In Romania, there are no specific rules which address the issue of

price gouging Nonetheless we have Competition Law and Competition Council (and

Mr. President Bogdan Chiritoiu). In this sense, the Romanian Competition

Council (RCC) did not watch passively the situation regarding the increase of

prices for protective masks and has launched a new investigation. The President

of the Romanian Competition Council has recently announced that it is currently investigating the

behaviour of companies which commercialize products & protection equipment

consisting in the sudden and excessive increase of their prices.

Even though the main aim of competition law is to ensure free

competition, competition regulations also protect indirectly consumer welfare.

Having this in mind, if price gouging may be included in one of the categories

sanctioned by competition regulation, then this practice is not fostered from

potential sanctions. At first glance, price gouging may be qualified as an

abuse of dominant position under the form of excessive pricing.

Are there any precedents?

Price gouging has already been under the scrutiny of competition

authorities, especially in the pharmaceutical sector.

At European level, the European Commission has opened an investigation with respect to the excessive price

increases concerning five life-saving cancer medicines. This comes after the Italian Competition Authority has sanctioned the same

company for excessive pricing concerning some essential off-patent drugs.

In UK, the Competition Market Authority (CMA) has also

sanctioned a similar deed – excessive prices for anti-epilepsy drugs. However, the

Competition Appeal Tribunal has quashed the CMA’s decision arguing that the CMA

did not prove that the prices practiced were unfair.

Having the above in mind, is price gouging truly effectively

sanctioned under competition law? Should the competent authorities intervene

through specific regulations in order to limit exploitative increases of

prices? Any piece of legislation required? Or we have the Competition

Council with enough instruments to solve the issue?

By Mihaela Ion and Vanessa Nistor