On 12 September 2018, the Belgian Competition Authority (BCA) released its draft Guidelines (in French and Dutch) on information exchange pertaining to markets and prices.
The Guidelines target business associations (federations of undertakings or of liberal professions), which consist of individuals and firms with common commercial interests, joining together to further their professional goals. As underlined by the Organisation for Economic Co-operation and Development, their important role in modern economies is widely recognised. Indeed, their activities benefit their members (particularly smaller members) but they may also be beneficial in increasing the efficiency of the market.
However, the BCA's Guidelines do not apply to information directly shared among competitors, and certainly not if it is shared within the framework of a cartel.
In this article, we discuss the principles governing information exchange, as well as the analysis of specific practices by the BCA. Finally, we provide guidance regarding what such associations must pay attention to when exchanging information.
The BCA starts by stating that information exchanges are not per se problematic. Indeed, they may generate efficiency gains as undertakings may increase their internal efficacy by comparing their respective best practices. As for consumers, they may benefit from these exchanges thanks to a decrease in research costs and an increase in their available choices.
However, such exchanges may become problematic if they allow undertakings to have insight on their competitors' marketing strategies. The risk assessment depends on whether this information would or would not allow undertakings to coordinate their behaviours so as to limit commercial risks implied by normal competition.
In this perspective, the distinction must be made between: (i) information usually accessible to competitors (such as previously published information or information relying on data already known by the market); and (ii) strategic information (data diminishing the strategic uncertainty onto the market). The latter is more susceptible to be caught by Article 101 TFEU. For instance, strategic information could include: prices (for example, rebates), clients list, production costs, quantities, sales and marketing strategies, or details of R&D programs.
Time-wise, the exchange of past information is usually assessed based on its effects (positive, neutral or anticompetitive). However, information exchange on future pricing policies is equated to agreements on price. Consequently, it will be considered a "hardcore" restriction and, hence, deemed a serious violation of competition law (irrespective of whether or not an agreement has been made on prices).
Analysis of specific practices
The BCA further analyses specific information exchange practices and provides the following guidance:
Periodic market statements
According to established case law and decisional practices, such statements on how a market behaved is compatible with competition law if: (i) the reference period is sufficiently long; and (i) the numbers are aggregated so as to avoid competitors being able to identify their respective numbers. However, the exact scope of these two criteria depends on each market's characteristics (For example, the period might be shorter for a market into which a large number of transactions happens on a daily basis).
Usually, price comparison websites increase competition as they increase consumers' choices and allow them to capitalize on competition. However, this requires that: (i) the website manager use objective criteria to select prices; and (ii) the information being displayed is not misleading. The same goes for online market places: whilst increasing consumers' overall information and increasing their choices, they require: (i) correct information as well as (ii) choices that are not mislead.
Expected market evolutions
As mentioned above, the BCA insists that information exchange on future pricing policies and pricing intentions are equated to an agreement on price. It is irrelevant whether prices have actually been implemented or not. However, this should not be interpreted as precluding competitors from publishing price lists, or unilateral announcements on prices.
Regarding expected market evolutions, the assessment will depend on the nature of the information being shared and on the market's needs. From this perspective, it is important to verify who is really interested in the information and why.
Modules for the calculation of costs and price determination
The BCA acknowledges the fact that this is a difficult and sensitive topic. When aiming at improving the quality of SMEs' management, it is sometimes necessary to signal to those entrepreneurs what should be taken into account to determine their prices.
For instance, it has been decided as being acceptable to develop a module giving information on what costs should be taken into account and where information thereon could be found (such as costs linked to commercial premises, energy, accounting, or taxes).
The BCA however specifies that the following practices are prohibited:
- the association collecting information from its members, who have access afterwards to the answer provided by their competitors (so as to determine the price considered as normal and calculate an index relevant for a sector); and
- members, acting or not in the context of the association, agreeing on prices or the exchange of previously undisclosed information about the market, with the hope that it will favour price fixing among competitors.
The BCA focuses on exclusive and selective distribution agreements and makes the following distinction:
If the distributor is not a direct competitor of the retailer
The sensitive issue pertains to marketing promotions and the setting of a minimum rebate (and hence a maximum price), which is per se compatible with competition law.
However, the general exchange of information by the association thereon cannot give (directly or indirectly) competing distributors or retailers the ability to estimate the rebates actually granted by each other.
If the distributor is a direct competitor of the retailer
This configuration is much more problematic. Again, distributors are not allowed to access (directly or indirectly) information disclosing rebates actually granted by retailers.
Consequently, systems must be put in place in order to avoid retailers from accessing sale numbers of their competitors (except under the form of periodic market statement, as explained above).
In such distribution networks (when distributors are also retailers), a general principle of precaution must be applied so as to avoid the exchange of sensitive information (for example, an offer made by a retailer to important clients, which could also be approached by the distributor).
Osborne Clarke comment
As we have seen from our practice, information exchange issues are often overlooked by business associations. This stems from a complex legal framework and from the need to assess the characteristics of the information shared (as being sensitive or not).
Therefore, these Guidelines will be welcomed by practitioners as well as associations themselves, since they provide further insight on the BCA's approach towards information exchange.
In a nutshell, we recommend that trade associations pay attention, among other things, to:
- what is being shared (the information's characteristics);
- with whom it is shared (competitors or non-competitors);
- when it is shared (the frequency);
- the level of aggregation of shared information (whether it is anonymised); and
- the age of the information (whether it is past, current or future).
Having already assist several of our clients in that regard, we cannot stress enough the importance of defining a clear internal policy on information sharing.
If you would like further information please talk to one of the experts listed below or your usual Osborne Clarke contact.