There are two ways to interpret the remark below from the head of the Dutch competition authority.  

The first is to see this as a thinly-veiled warning that the antitrust agency will be on the look-out for cartel arrangements that were set up by companies that got carried away during the pandemic and strayed on to the wrong side of the tracks.   

But the Dutch agency might also be hinting at an issue that could become relevant for a lot of companies that have made use of concessions and other antitrust exemptions etc. during the pandemic to work more closely with competitors to address shortages.

As confinement is relaxed and bottlenecks are cleared, those companies are probably wise to ask themselves, 'Can our special arrangements continue?'

In many cases, it is absolutely clear that specific arrangements were exceptional; only cleared by the local antitrust agency for the short term and there may even be a clear end date. In some cases, the new ways of working will be efficient, perfectly legal and the only issue is why no one thought of it before.

But, for other companies and joint arrangements, the position won’t be so clear – especially now it seems that the staggered way in which lockdown rules are being relaxed means that we are still far away from seeing demand return to the normal level.

The question, as lockdown ends, therefore is whether collaboration with a competitor remains justified as being in the public interest ? When does it start to take on the hue of protecting margins in the private interest?

This is a blurred and difficult area. Life is certainly made harder because of temporary antitrust concessions and relaxations for otherwise black-listed activities but, even as we exit the pandemic, it is not that easy to separate the public from the private interest. For example, reduced efficiency due to (artificially) reduced demand and loss of scale will take its toll on the private sector and this will affect the public interest.

In the end, care will need to be taken to ensure that cooperation with competitors is fine-tuned, tailored to market changes and totally transparent to the market and customers. A laser-focus on consumer benefits is needed so that it is always possible to show that companies are using the least restrictive private means to serve the public interest.