The EU’s European Competition Network is charged with identifying and rooting out anti- competitive practices across the EU. It has focussed repeatedly on practices within the food industry and the indications are that this focus will continue. At a domestic UK level a similar focus can also be expected. As an illustration, the EU has recently launched an investigation into companies which supply packaging for meat, cheese and other produce which it is claimed may have been operating a cartel for the last eight years. Where a cartel is substantiated, fines up to 10 per cent of the annual turnover of each of the participating businesses can be imposed. In addition those businesses can be exposed to civil claims from customers and others for losses suffered from operation of the cartel. Reputational damage can also be substantial.
As an aide memoire most of the investigations, both at the EU level and at the UK level, have been based on companies which are considered to have colluded in one way or another to fix prices or share markets (in terms of agreeing geographical limits on the markets in which particular participants will seek to compete or seeking to regulate the specific customers or types of customers with which participants will seek to do business in a particular area), to make unlawful information exchanges (which have the effect of assisting participants to preclude or limit competition) or to control resale prices.
It is important to remember that offending anti-competitive behaviour can fall foul of the legislation even where the arrangements with competitors are not legally binding. If there is an expectation that particular offending actions will be taken, for example following a meeting of a trade association or of industry participants, that will be sufficient.
There were more than 180 investigations at the EU level over the last seven years and a very substantial number domestically. Conventionally tougher economic trading conditions gives rise to an increase in anti-competitive activity.