Ingrid Vandenborre, Partner
Ingrid Vandenborre is the partner in charge of Skadden’s Brussels office. Her practice focuses on EU and international merger control and competition law enforcement. She has consistently been named as a leading practitioner in Who’s Who Legal guides in both competition and life sciences and was recognized by Global Competition Review on various occasions. In 2016, she received the ILO Client Choice Award for the category of EU Competition and Antitrust, awarded by The International Law Office in recognition of individual partners who excel across the full spectrum of client service, and in 2018 she was shortlisted for “Transatlantic Disputes/Regulatory Lawyer of the Year” at the Transatlantic Legal Awards, hosted by Legal Week and The American Lawyer. She currently serves as Non-Governmental Advisor to the intergovernmental International Competition Network (ICN).
Her practice extends to EU and non-US merger control, and antitrust enforcement issues and investigations, both with the EU Commission and EU Member State competition authorities. Recent and ongoing representations include the immunity and leniency applicants respectively in relation to the EU Commission’s power cables and car battery recycling cartel decisions, and the appeal proceedings currently pending before the European courts against these decisions. She is also representing several defendants in the EC’s ongoing geo-blocking investigations in relation to hotel bookings, Aspen in its investigation relating to alleged excessive prices by the EC Commission, and a generic company in relation to the appeal before the European Court of Justice against the Commission’s first reverse payment patent settlement decision. Her recent merger control experience includes the representation of NXP in relation to the acquisition by Qualcomm, Rockwell Collins, Inc. in its acquisition by United Technologies Corp. and Key Safety Systems in its acquisition of assets from Takata Corporation.
Around the world, competition authorities see the necessity of temporary cooperation between businesses to deal with the COVID-19 crisis and avoid shortage of essential supplies.
Unless temporarily exempted from scrutiny under emergency frameworks, companies should be cautious not to exchange individualized commercially sensitive information or coordinate their actions with competitors.
However, companies should identify where cooperation opportunities may exist or new relationships can be forged to help them better address customer needs and shortages, actual or anticipated. In doing so, however, they should be careful to document any measures that would entail necessary and temporary cooperation, specifying their public policy goal, as well as the absence, or the exhaustion, of any alternative solutions. For example, it would be better to resort to the aggregation and anonymization of information by a third-party to mitigate the risk of unlawful collusion where possible.
Where collaboration is identified as necessary, it will in most cases be advisable to discuss the planned cooperation with the relevant antitrust agency(ies). In that context, it will be important to ensure that a process is put in place to ensure that all exchanges with a competing provider can be documented and provided to the competition agency if required.
Also outside any potential coordinated action, in the current circumstances, it will generally be advisable to over- rather than under-communicate where possible. Companies should be clear and consistent in the communications with their trade partners on any change or delay in approach for example, where necessary setting out the reason and purpose for their policies and decisions. This includes for example communications with customers, distributors as well as suppliers, about the scope and the basis for any changes in prices, costs, supply, output, forecasts, or other economic terms, or delays in implementation or payment. It may also extend to regulatory authorities.
This is particularly relevant for areas where the company concerned holds a material share of supply. In areas of potential market power, it will be important to consider the scope and potential effect of implementing unilateral measures on customers, distributors or competing suppliers under the current circumstances.
Finally, as weeks pass and competition agencies refine their approaches and processes, companies should continue to monitor how competition authorities are likely to assess competitor collaboration. If in doubt, they should always err on pro-actively seeking informal guidance.
It remains to be seen whether, and how, competition authorities will further adjust competition rules and policies as the crisis evolves. It is almost certain, however, that industrial policy concerns will play a greater role in antitrust enforcement going forward. This will affect merger control review in the EU, particularly for transactions involving European pharmaceutical assets or innovation, and greater scrutiny in areas of pricing or supply of pharmaceuticals, a trend which has already started prior to the crisis with the greater degree of enforcement against alleged excessive pricing in pharmaceuticals. The pharmaceutical sector will likely remain a key focal point for antitrust enforcement by the European Commission and the EU Member States.
