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PE100+ 协会 > Competition Law Compliance Guidelines
Competition Law Compliance GuidelinesThe Following Competition Law Compliance Guidelines are Endorsed and Applied by Member Companies within all PE100+ Associaiton activities.
I. RELEVANCE OF COMPETITION LAW What type of conduct does competition law regulate? The general objective of competition law is to maintain free competition in the marketplace and to protect the interests of consumers. EU and national competition laws prohibit the following types of conduct.
Two basic points should be borne in mind:
Why is competition law compliance important? We must ensure that both the Association itself and its members comply fully with EU competition law and applicable national competition laws. As trade associations are, by definition, made up of competitors, competition regulators, including Directorate-General Competition of the European Commission (‘DG Comp'), are particularly alert to the risk of restrictive agreements or concerted practices in this context. Both DG Comp and national competition authorities (for example, the Office of Fair Trading in the UK) apply and enforce competition law. Competition authorities enjoy wide investigation powers for suspected infringements of competition law, including the power to carry out unannounced inspections (‘dawn raids') at Association or members' premises. Infringement of EU and national competition law, even if inadvertent, can lead to fines, civil liability for damages, and in some countries, criminal liability. Even where no infringement is ultimately found, investigation by a competition authority of a suspected infringement will require dedication of resources in cooperating with the authority (and, possibly, constructing a legal defence) and may prejudice the credibility of the Association and its ability to retain, or attract new, members. It is the responsibility of the Association and each of its members individually to ensure compliance with these guidelines. What are restrictive agreements or concerted practices? EU rules prohibit agreements between competitors whose objective is to restrict or eliminate competition between them in order to increase the prices and profits of the undertakings concerned without producing any objective counterbalancing advantages for customers. Examples are given in Section II.A. below. A concerted practice is less clear-cut than a restrictive agreement. It involves coordination among firms which falls short of an agreement proper. A concerted practice may take the form of direct or indirect contact between firms whose object or effect is to influence market behaviour or to tacitly inform each other what conduct they intend to adopt in the future. Associations are a potential forum for restrictive agreements or concerted practices between their members. What are decisions by associations of undertakings? A trade association may, independently from or in combination with its members, infringe competition through decisions (interpreted to include recommendations to its members) which restrict competition. Examples are where a trade association recommends fixing of prices or that its members deal only with specified service providers or potential customers. Abuse of a dominant position Companies that have the economic power to act independently and set prices regardless of customers' or suppliers' demands or competitive pressure have a special duty not to restrict competition or exploit their customers. Single firm dominance is assumed where a firm accounts for a dominant share of supply or demand (normally 40% or more). Small companies may be dominant in narrowly defined markets and members should therefore ensure that they are aware of products or services in relation to which they may be found dominant. Even if individual members may not be dominant, trade association members may be considered collectively dominant in a particular product market if a few of them account for a large share (say, around 80%) of supply and if they have contacts with each other through the trade association. In such an oligopolistic market, parallel behaviour that restricts competition or exploits customers may be found abusive even in the absence of evidence of active collusion. As soon as a dominant undertaking's behaviour has an anti-competitive object or effect, without objective justification, it may result in fines and civil liability. Examples of possible abuse of dominance include:
II. HOW TO COMPLY WITH COMPETITION LAW The following guidelines apply to the Association, any Association subgroup and individual Association members, and should be complied with in order to avoid a potential infringement of competition law. •A. Anti-competitive agreements No Association member should ever discuss, or be involved in, the following types of anti-competitive agreements. Nor should the Association recommend that its members carry out these activities.
To be prohibited by competition law, an agreement need not be written down or binding. A verbal information exchange or an informal agreement can constitute an infringement even if it is merely a ‘gentleman's agreement'. B. Membership rules Membership of the Association must not be used as a way of restricting competition. Accordingly:
C. Industry standards and standard terms The Association, and its working groups, may develop and promote industry standards or standard terms and conditions provided that this does not restrict competition. Accordingly:
D. Information exchange Members must avoid exchanging commercially sensitive information. They must be particularly careful in discussions with other members who are, or who may become, their competitors. This applies both at formal gatherings and at any informal (including social) meeting. Typical examples of commercially sensitive information include:
It should not be necessary to exchange commercially sensitive information in order to achieve the legitimate objectives of the Association. It is acceptable to discuss public policy, educational and scientific developments, regulatory matters of general interest (including Government-imposed prices or reimbursement policies), demographic trends, generally acknowledged industry trends and publicly available and/or historical information that have no impact on future business. E. Benchmarking and Market Surveys Collection of individual participants' data and the preparation of market survey or benchmarking reports should be carried out by an independent third party who is subject to confidentiality undertakings. Case law of the European Courts has established the following guiding principles regarding such surveys or reports, although appropriate conduct may vary depending on the specific market in question:
Members should avoid participating in studies or surveys which do not adhere to the above rules. F. Conduct at Association meetings Members should not attend meetings without a clear written agenda or indication of purpose. When attending an Association meeting:
If you attend an association meeting and the conversation turns to unlawful subjects such as anti-competitive practices, you should:
Remember: merely being present when illegal discussions are taking place may be sufficient to involve you and your company in an investigation by regulators. G. What to do if you suspect a breach of these guidelines? If you think that particular conduct (including agreements, discussions or other information exchange between competitors) has occurred which may be anti-competitive, we strongly suggest that you immediately contact both your company counsel and the Association, who will take appropriate steps.
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