On 1 October 2019, the Belgian Competition Authority (“BCA”) published its Guide on information exchange in the context of associations of undertakings (“Guide”).
The BCA is often faced with questions about the legality of information exchange involving associations of undertakings such as professional associations and federations of liberal professions. They usually concern the exchange of market information with their members and the tools they are allowed to offer to their members or clients.
1. THE SCOPE OF THE GUIDE
The Guide’s scope is limited to information exchange by associations of undertakings, or by market search offices or companies. The Guide therefore provides guidance on what is or is not allowed regarding information exchange between members of associations of undertakings which might or might not be competitors but it does not cover direct information exchange between competitors generally or in case of collusion. In fact, direct exchange of information between competitors is covered by the Guidelines of the European Commission on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements.
According to the BCA, the Guide aims at providing general principles. Consequently, a case-by-case analysis of information exchange will still be required.
The Guide recognizes that exchange of information may offer efficiency gains for undertakings, allowing them to compare their practices and hence reduce certain costs.
However, it can also distort and restrict competition through setting fixed prices or allocating markets or clients, which are forbidden under competition law rules. The maximum fine for such infringement is 10% of the association’s annual turnover that corresponds to the addition of its members’ turnovers on the concerned market. The association’s members can also be fined.
2. DIFFERENT TYPES OF INFORMATION EXCHANGED AND THEIR COMPATIBILITY WITH COMPETITION LAW RULES
2.1 Regular statements of the markets
Regarding regular statements of the markets, the BCA considers that undertakings should, within certain limits, have access to this kind of information to improve awareness of their market situation. The exchange of regular statements on market changes is considered to be compatible with competition law rules if those statements are sufficiently aggregated so that members do not know the individual revenues of their competitors, and if the data is sufficiently old and not exchanged too frequently. However, the notions of “sufficiently old”, “sufficiently aggregated” and “frequently” have to be defined on a case-by-case basis depending on the market in question.
The Guide establishes a list of regular statements of the market that could be exchanged:
Annual, semi-annual and quarterly statements showing the total turnover (in value or volume) of companies in the sector.
Annual, semi-annual and quarterly statements with more detailed data, but always aggregated (sales, capacities, costs of inputs or components) for a large number of companies.
The average price statement for a large number of transactions, such as the prices of different categories of real estate by municipality, for instance those published in the Trends-Tendances.
Monthly statements if a market has a large number of participants and transactions or if the target companies form a particularly diverse group, or if there are frequent price negotiations, for instance daily price negotiations.
The Guide also establishes a list of regular statements that could raise issues but which could still, under certain circumstances, fall under general competition law exemptions:
Net price-based statements, as they raise more questions than statements based on gross prices for goods or services for which rebates are frequently granted, and where a market for gross prices is more transparent.
Weekly statements that contain sufficient detail for parties and even transactions to be identified, and certainly when competitors can deduce discount granted.
The way the information is collected is also relevant. It is essential that information exchange between members of associations of undertakings occurs in such a way that the members providing confidential or commercially sensitive data only have access to their own data and to the final product to avoid any leaks.
Consequently, the Guide advises associations to organize collecting and treating data through an independent service provider subject to a strict confidentiality requirement and to limit it to information required for an authorized publication.
2.2 Price comparisons
The Guide also covers price comparisons, especially price comparison websites, which have been the subject of many debates in competition law. Indeed, price transparency is deemed to be beneficial for consumers, but it also tends to facilitate price coordination between competitors.
The BCA states that when an association of undertakings establishes a price comparison website, the manager of the platform should use objective criteria to determine the prices and the accuracy of the published data. Conversely, a general prohibition to be on such a price comparison website may constitute an infringement.
When a price comparison website contains information on the actual prices of the services proposed by the involved undertakings (and not future prices) and that these prices are accessible for consumers, the BCA considers the information exchange as admissible, but it still stresses the importance of a case-by-case assessment. Where there is disclosure of future prices on the website, this will definitely be considered as being anti-competitive.
The Guide refers to an example presented by the European Commission in its Guidelines o on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements. Further developments and examples would have been welcome due to the development of such tools on internet.
2.3 Information on expected market changes
The Guide provides some indications regarding exchange of information on expected market changes.
The BCA recalls that information exchange between competitors of individual data on possible future prices or pricing intentions, and therefore still adaptable prices, may be considered as a cartel. Nevertheless, competitors are allowed to publish lists of definitive prices or make a public announcement regarding definitive unilateral prices.
The Guide includes some examples of the type of information on expected market changes that are admissible, such as “2016 has been a good year and we expect this trend to continue” or “2016 was a difficult year, but many members tell us that orders are picking up”. The Guide also includes counterexamples, arising under certain circumstances, for instance where there is a small number of competitors on the relevant market, which exchange communications such as “... three-quarters of surveyed members indicate that they expect demand for product x to increase significantly in the next month. The level of stocks is low. And half of the respondents said they had little spare production capacity”.
2.4 Modules and formulas for cost calculation and determination of prices
The BCA provides guidance on the exchange of modules and formulas for cost calculation and determination of prices.
Cost calculation modules could lead to collusion when undertakings on one market set their prices by assigning the same weight to the same costs. Nevertheless, the exchange of information on market best practices is important to improve the quality of the activities within the undertakings.
Consequently, the Guide establishes lists on admissible, problematic and strictly inadmissible practices regarding information exchange of cost calculation and determination of prices through modules and formulas.
A module or formula could be considered as admissible if it regards the following:
A calculation formula which only indicates costs that should be taken into account and where information can be found on these costs (costs related to commercial premises, staff, company equipment, energy, telecommunications, accounting, means of transport, taxes, etc.), and on how these costs can be allocated to the turnover of the different products or services, without indicating the amounts and percentages for very small businesses (such as chip shops).
A module or formula which only lists the fixed and variable costs, such as raw material costs, labour costs, training costs, rental costs and/or other real estate financing costs, purchase/lease/depreciation of equipment, including rolling stock, energy costs, telecommunication and computer costs, insurance, non-billed hours worked, overhead costs, etc.
A situation where each user must decide individually on the relevance of a cost factor to his business and, if so, on the amount that should be taken into account; each user therefore has to decide individually on the distribution of overhead costs among the different goods and services.
A situation where each user must individually identify the tasks performed within a specific project.
A module or formula could be considered as problematic if it regards the following:
A calculation formula involving an estimation of the relevant costs for a number of items for which a mutual relationship has been established, and through which an “indexed” price has been communicated.
An agreement on a maximum rebate in the case of an advance payment.
An employee of a professional organization addressing a member as follows: “The client will ask you questions about the quality of your work, if your price is significantly lower than that of your competitors” as it may be seen as an invitation to contact competitors to know their prices and could therefore give rise to collusion.
A module or formula is strictly prohibited owing to a lack of autonomy of the members of the professional association to determine selling prices if it regards the following:
Proposing a price recommended by the professional association.
A module or formula that offers a selling price corresponding to what the professional association considers to be a price commonly used or included in the index calculated for the sector, particularly when the companies involved are so small that they are unlikely to get another estimation autonomously.
A request from the professional association to its members to provide price data, for instance to determine the price considered as normal and to calculate an index considered as relevant for the sector, and where the members can access individual responses from their competitors.
Members entering into price and tariff agreements, whether or not within the framework of the trade association, or exchanging unknown market information in the hope of influencing competitors' pricing.
The Guide on information exchange in the context of associations of undertakings provides some useful and practical guidance for associations and their members and therefore completes the Guidelines of the European Commission on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements, which focuses on general characteristics of information exchange and direct exchange between competitors.
However, some hot topics could have been more detailed and substantiated with concrete examples.
In any case, It will increase the associations’ awareness on the issue of competition law and in some case allow them to fulfil their missions and to implement their projects with more legal certainty.