HCA Guidance on Competition Law
These guidelines are designed to provide a simple set of do’s and don’ts in relation to the organisation and conduct of HCA meetings to help prevent the HCA and its members acting improperly.
Competition law prohibits agreements between companies and decisions by associations of companies which have as their object or effect the restriction or distortion of competition within the UK or the EU. The concepts of ‘agreement’ and ‘decision’ are very broad and include tacit agreements and passive acceptance of anti-competitive conduct.
Compliance with these guidelines is essential – not only can the Association be held liable for anti-competitive conduct, but so too can participating companies. Those in breach face significant fines, disqualification of directors, and potential criminal sanctions. Non-legal sanctions such as loss of reputation are equally important. If you have any queries concerning these guidelines or their application, please contact the HCA CEO.
HCA MEETING ORGANISATION
The following guidelines apply to all HCA meetings.
All meetings organised or attended by the HCA must have a legitimate purpose;
What must not be discussed at meetings
- If during the meeting a discussion is held which is thought to have strayed on to a sensitive area for competition law, either the HCA representative or any concerned member should raise this concern and ask that the meeting leader suspend the discussion
- Beware that competition law obligations extend not just to discussions during the meeting itself, but also to conversations en route to meetings, and in a social context before and after meetings e.g. over coffee during a break.
What may be discussed at meetings
Members may discuss the following:
- Share competitively sensitive information between members about pricing, customers or output plans
- Hold any discussion that could facilitate, support or lead to the restriction or distortion of competition within the UK or the EU
INDUSTRY STANDARDS, CODES OF PRACTICE, BEST PRACTICE AND STANDARD TERMS AND CONDITIONS ("common standards")
- Policy development;
- Industry public relations or advocacy activities;
- Publicly available information on market trends (provided this does not lead to collusion concerning the future);
- Non-confidential, technical issues relevant to the industry such as court judgments, proposed new legislation; regulatory codes of conduct etc (provided this does not lead to collusion concerning the future);
- Information exchanges concerning non-public data which relate only to:-
- General, historical and non-confidential data (i.e. cannot be expected to have an impact on competitors’ future business) OR aggregated data of at least 3 independent producers; AND
- Individual businesses cannot be identified from the data OR the data is processed by an independent third party and confidentiality is assured.
Promotion of common standards can be a feature of HCA activity. Although such standards can be beneficial where they improve the quality of the association members’ products or services, problems may arise when such standards risk increasing barriers to entry to the market or discriminating against particular companies. Note:
- Standardisation measures should not be used to raise barriers to entry to the market artificially;
- The use of a standard form or approach should not be made compulsory;
- Any ‘best practice’ code should not limit the way in which participants are able to compete and details should be made available to all within the industry.