On 1 October 2019, the Belgian Competition Authority (BCA) adopted a new set of guidelines relating to exchanges of information in the context of trade associations. Following the lack of clarity highlighted by some market participants, the main objective of these guidelines is to provide legal certainty as to the type of information and market data that trade associations can exchange, internally and with their members, and what practices are certainly not allowed. As penalties for infringements can amount to up to 10% of the trade association's annual worldwide revenues (the sum of the revenues of each of its members active on the market(s) in question), trade associations should be vigilant. Since trade associations play a prominent role in Belgium, these guidelines come as no surprise and trade associations and their members should expect the BCA to keep a close eye on their dealings.
Guidance for trade associations. The guidelines are aimed at clarifying the current stance of Belgian and EU competition law and practice regarding exchanges of information in the context of trade associations. They provide a more detailed review of specific situations of information exchange that can arise in the context of a trade association: periodic overviews of markets; price comparison tools; provision of market forecasts to members; and the provision to members of cost and price calculation methods and formulas (such as price indices and benchmarking).
In particular, trade associations should take into account the following guidance given:
- Exchanging records on market developments is compatible with competition rules if the data is sufficiently aggregated, sufficiently old and if not exchanged overly frequently;
- Information exchanges relative to prices and pricing practices are more likely to be considered anti-competitive, especially when net prices are exchanged (as opposed to gross prices);
- Price comparison websites launched by trade associations are not considered per se illegal as long as objective criteria are applied to determine which prices are shown to users. Nonetheless, banning price comparison websites can be considered anti-competitive behaviour;
- Recommending a sale price corresponding to what the trade association considers to be the average sector price is strictly forbidden; and
- Trade associations cannot request that their members provide data related to prices when these members can access the individual replies of other members. In that respect, trade associations should make sure to implement the necessary internal safeguards, such as the setting-up of a so-called "black box".
Trade associations should also note that these guidelines set out general principles which will need to be interpreted and applied to the specific facts of the exchanges of information under review by the BCA, outside counsel or the trade association's in-house counsel. The specific characteristics of the information as well as its strategic/commercially sensitive nature will play a role. In that regard, specific attention must be given to the specificities of the markets and industries in which the trade association is active.
Main take aways. The guidelines reaffirm that the BCA is focussed on moving against anti-competitive conduct – conduct resulting from any form of information exchange and reduction of opacity in the market, be it directly among competitors or through the conduit of a trade association. As penalties for infringements can amount to up to 10% of the trade association's annual worldwide revenues (the sum of the revenues of each of its members active on the market(s) in question), trade associations active in Belgium should prioritize implementing these guidelines in their internal functioning.
Background. On 12 September 2018, more than one year before the adoption of the guidelines, the BCA launched a public consultation while simultaneously issuing a first draft of the guidelines. Various stakeholders, including specialized legal practitioners and industry participants commented in the context of the consultation. A number of significant changes have come about since the first draft of the guidelines, which shows the BCA's preparedness to actively listen to stakeholders.