The Court of Appeal has upheld the Competition and Markets Authority’s (CMA) GBP130,000 fine against a steel water tank supplier, Balmoral Tanks Ltd (Balmoral), for exchanging commercially sensitive information around pricing with its competitors. The information exchange occurred at a one-off meeting at which Balmoral had refused to participate in a price-fixing cartel with these competitors. The ruling will be of particular interest to businesses which operate in a competitive market and which might be tempted to exchange pricing information or other competitively sensitive confidential information with rival businesses: (1) Balmoral Tanks Ltd (2) Balmoral Group Holdings Ltd v CMA [2019] EWCA Civ 162

The appeal stems from a CMA investigation into a cartel arrangement between suppliers in the cylindrical galvanised steel tanks (CGSTs) market in the UK.

In 2016, the CMA issued two competition law infringement decisions which found that:

– four CGST suppliers had engaged in price-fixing, bid-rigging and market sharing by way of customer allocation (the Main Cartel); and

– three of the parties to the Main Cartel, along with Balmoral, had also exchanged commercially sensitive information regarding their current and future pricing intentions for certain types of CGSTs (the Information Exchange Decision).

In both cases, the CMA concluded that the parties had participated in a concerted practice which had as its object the prevention, restriction or distortion of competition in relation to the supply of CGSTs.

The underlying facts of the Information Exchange Decision

The CMA found that the information exchange took place at a single meeting in July 2012 which lasted only 90 minutes. Balmoral had only entered the market six months previously and had been competing vigorously with the Main Cartel members, reducing prices by as much as 20%.

No doubt to restore prices to cartel levels, Balmoral was invited to join the cartel arrangement at the meeting, but declined the offer. Nonetheless, the meeting continued and the participants exchanged information relating both to specific contracts for which they were supposed to be submitting competing bids and to generic pricing strategies for certain type of CGST. The meeting was secretly recorded by the CMA.

Balmoral and its parent company (the appellants) were fined GBP130,000 under the Information Exchange Decision while the other undertakings were fined pursuant to the Main Cartel decision. Following an unsuccessful appeal to the Competition Appeal Tribunal (CAT), the appellants appealed to the Court of Appeal.

Grounds of appeal

The appellants argued that the CAT had:

– failed to recognise that the CMA’s Information Exchange Decision was inconsistent with its decision that Balmoral had not been involved in the Main Cartel;

– adopted an impermissibly strict approach to the test for object infringement in the context of information exchanges;

– failed to undertake the necessary analysis on whether the information exchange had reduced uncertainty regarding pricing among the participants; and

–​ had erred as a matter of law in concluding that the CMA could impose a fine on Balmoral, and Balmoral alone, for its role in the information exchange infringement.

The Court of Appeal held that:

No inconsistency

The CMA’s approach meant that Balmoral was held liable for no more or less than what it had done. Although the two infringement decisions had elements in common, it was appropriate to distinguish them. The Main Cartel had involved longstanding arrangements for bid-rigging, customer allocation and price-fixing whereas the information exchange involved no more than an exchange of commercially sensitive information which reduced uncertainty as to pricing. The court considered that it would have been unfair to find Balmoral complicit in the Main Cartel given that it had refused to join it.

The legal test for “object” infringement not impermissibly strictly approached

The CAT had not come close to suggesting that any exchange of pricing information between competitors constituted an “object” infringement. Instead, the CAT had provided an explanation as to why it considered the specific exchange of pricing information to be harmful to competition, for example the fact the prices discussed “went well beyond generic pricing”.

A single meeting can give rise to a concerted practice

Balmoral submitted that the CAT had not considered the participants’ state of knowledge before the meeting and that a single meeting, such as this one, was less likely to raise concerns than a series of meetings. The court gave this short shrift, confirming that a single meeting is capable of giving rise to a concerted practice.

Fining Balmoral alone did not offend equal treatment principle

Balmoral argued that the CMA had breached the principle of equal treatment as it had only fined Balmoral under the Information Exchange Decision, and not the other participants, whose conduct at the meeting had been more egregious than that of Balmoral. The court dismissed this argument on the basis that the Main Cartel participants were in a different position to Balmoral. They had had large penalties imposed on them for their involvement in the Main Cartel and these were attributable to anti-competitive behaviour over a period that encompassed the July 2012 meeting. The CMA could not justify imposing an additional fine on these participants.

COMMENT

The ruling is a clear reminder to businesses and individuals that exchanging commercially sensitive information with a competitor, even if it is only at one meeting, can amount to a breach of competition law. It is not enough to refrain from “hard-core” cartel infringements such as price-fixing or market-sharing; rather, businesses must ensure they avoid sharing any commercially sensitive information with competitors.