The Dos and Don’ts of Discussions Between Competitors

Given the closeness of Ireland’s economic, political and cultural ties with the UK, Brexit is likely to result in the biggest upheaval in Irish business for decades. Already, industry players, government and government agencies are meeting to better understand the implications for the various sectors of Irish business. In these circumstances, it is very important to be alive to the dangers of inadvertently falling foul of EU and Irish competition law and to be mindful that competition bodies tend to subject such meetings to close scrutiny.

We set out below some high-level tips to follow when participating in such industry discussions:

Do:

  • Use industry forums to identify common views on regulatory and policy issues and to organise the promotion of these views to Government bodies and other stakeholders / opinion-formers.
  • Ensure that all meeting attendees are aware of the importance of competition law compliance at such meetings.
  • Follow a written agenda and ensure accurate minutes of each meeting are recorded.
  • Elect a chair who is prepared to interrupt and halt conversations which could become inappropriate.
  • Ensure that no commercially-sensitive information is discussed and that any information shared at a meeting is publically available or historical, anonymised and aggregated.

Don’t:

  • Confer with competitors about your business’ future commercial strategy, eg, pricing policies, currency hedging, or how you might adapt behaviour to meet competition from new entrants.
  • Become involved in any discussion which may lead to coordination with competitors.
  • Discuss the imposition of production quotas or agreed terms for particular customer types.
  • Make agreements not to operate in the geographic territory or customer sector of a competitor.
  • Share information on how your company proposes to participate in a competitive tender.
  • Organise or engage in a collective boycott of a customer or a supplier.

Remember that the competition law rules are wide-reaching and the above tips are not exhaustive. For example, information-sharing can be unlawful even where no actual coordination occurs. If you are in any doubt, seek legal advice.