The Competition Authority is keeping a close watch on the advice given by trade associations to their members. In recent months the authority has urged a total of five trade associations to adjust the recommendations made to their members. A €7.7 million fine was imposed on one trade association, with two of its officials being fined €50,000 and €25,000 for anti-competitive 'recommendations'. In line with EU case law, the authority examined whether the trade association's recommendation qualified as a decision by constituting "a faithful reflection of the trade association's resolve to coordinate the conduct of its members".(1)
In December 2011 the trade association for textile care professionals committed to stop advising its members to pass on specific costs for textile care to certain customers, after the authority had expressed concerns. In addition, it promised to remove the words "coordination and harmonisation of members' activities" from the objects in its articles of association.(2)
The Association of Physiotherapy had its knuckles rapped for calling on its members to refrain from concluding any contracts with insurers before a dispute over the use of a quality system had been resolved. According to the authority, this could lead to an anti-competitive collective boycott; it therefore urged the association to clarify to its members that they remained free to decide whether to conclude contracts with insurers.
In January 2012 the authority instructed the Association of Travel Agents and Tour Operators to revise its general agency conditions, which were interpreted by some travel agents as a ban on discounts on travel sales. The amendment led the authority to close its investigations into the travel industry.
Similarly, the authority urged the trade association for inland shipping to adjust its gas oil circulars to avoid creating the impression that inland shippers should pass on their waste management contribution costs to customers.
The Association of General Practitioners was not let off the hook so easily, however. The association was fined for recommending to its members that they accept new general practitioners (GPs) in a certain geographic area only if the established GPs in that region agree to their entry. According to the authority, these recommendations created barriers to market entry for new GPs, the object of which was to restrict competition.
It therefore imposed a total fine of €7.71 million. In addition, fines of €50,000 and €25,000 were imposed on two officials because the authority held them responsible for making the recommendations.
In setting the trade association's fine, the authority took account of the fact that the trade association should have known better, since the authority had refused to grant it an exemption in regard of a similar establishment policy in 1998.(3)
In addition, the association's basic fine was increased because it had paid the individual fines imposed on its two officials.
For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected] or [email protected]).
Endnotes
(1) Case 45/85, Verband der Sachversicherer, 1987 [ECR] 405.
(2) Case 7245/Toezeggingsbesluit Federatie Textielbeheer Nederland, December 292011.
(3) The possibility to file for an individual exemption was removed from the Competition Act in 2004.