At the start of February 2021, the Competition Council published the final form of the Guidelines on competition law compliance by associations of undertakings (the “Guidelines“), addressed to the latter.
The scope of the Guidelines is to prevent the anti-competitive behaviour of associations of undertakings, severely sanctioned by the Council in the past, to raise awareness on the necessity to comply with competition law rules, as well as to provide some practical recommendations in this regard.
At the same time, certain sections contain recommendations that can serve as support in the process of developing (i) compliance guidelines, given the role of an association as being the best channel for disclosing information on compliance with competition law to its members, (ii) standards of ethics, and (iii) the statute of associations of undertakings.
Categories of associations and the main anti-competitive behaviours in which they may be involved:
First of all, the Guidelines indicate the categories of associations to which the competition rules apply, listing the following:
- Trade associations, also called business or employers’ associations;
- Professional associations;
- Self-regulatory associations in the field of advertising practices.
As regards the anti-competitive behaviours, the mentioned Guidelines deal with the main practices sanctioned by law, dividing them, on the one hand, in clear prohibitions, and on the other hand in sensitive activities.
Thus, the Council’s experts point out that behaviours such as price fixing or their components, market or customers sharing, bid rigging and limitation of production and/or sales represent clear prohibitions, which are likely to lead to severe sanctions on the association, as the perpetrator of the violation of legal provisions.
In the sensitive activities’ section, the document sets out, by way of example, those situations which may arise in the context of the pursuit of legitimate activities and which may have as their object or effect the restriction, distortion or impediment of competition.
Exchange of sensitive information – excessive transparency
Although in-depth knowledge of the market and its main features, by members of an association, facilitates development, the Council warns that, depending on the type and nature of the information exchanged, its level of detail, the period to which it relates, its frequency etc., the exchange of information may affect competition.
In this respect, a series of sensitive information is exemplified in the Guidelines, in line with EU case law, whose exchange must be avoided, such as:
- Information on volume, sales, market shares or production capacity;
- Price related information;
- Individual data of an undertaking (individual customers, sales territories, production capacity of individual equipment etc.);
- Various strategies, such as business or marketing strategies.
As an example, a real risk that can appear upon an exchange of sensitive information is represented by the distortion of competition, by offering to the competitors the opportunity to adapt, in line with others, their business strategies.
Last but not least, as provided in the Guidelines, all the anti-competitive behaviours can be prevented even by the associations, by developing their own compliance program, corresponding to the activity of each association, and only by analysing, in advance, the potential risks from the competition perspective.
We welcome the initiative of the Competition Council to raise awareness of the necessity to comply with competition law, as well as to support associations of undertakings, by developing practical recommendations in this regard, and expect responsible behaviour from an increased number of associations.
