Trade associations, industry “round tables” and other industry bodies and networks are a place where company representatives usually gather to discuss matters relevant to a specific industry (such as sharing of industry best practices, advancing industry or joint commercial terms and conditions, engaging in industry bench-marking or joint lobbying / joint advocacy activities).
These associations can play a positive and even a pro-competitive role in developing the thinking of a given business sector and promoting the image and reputation of the industry (for example by promoting safety standards).
However, as trade associations by their nature, gather competitors together, it should be realised that their activities can present an important antitrust risk that your company may be exposed to. Indeed they may represent real risk that collusion could occur.
A number of cases show that the serious consequences of non-compliance in connection to the activity of trade associations may often be under-estimated and lead to substantial reputational damages for the subjects involved as well as heavy fines.
Negative consequences may be borne by members, even in the absence of direct involvement, should the trade association be the only one formally held responsible, due to the effect on the business sector at large.
Landmark cases include the following:
- 2003 - Organic peroxides cartel case
- 2003 - Belgian architects’ fee system case
- 2007 - French Beef case
- 2014 - Poultry Meat Producers case
- 2014 - Irish Medical Organisation case
- 2016 - Model agents case
- 2017 - Egg producers case
- 2018 - Nursing Homes Ireland case
As a result, ask yourself when considering the risks:
- Has your company carefully assessed trade associations and similar industry bodies before becoming a member?
- Have employees been trained and received clear instructions to follow when attending the trade associations meetings?
- Are the trade associations you are involved with fully aware of antitrust risks and have they taken the necessary steps towards complying with antitrust rules?
- Does the trade association / industry body have a “members only” part of its website, and are you confident that everything contained there is antitrust compliant?
Three simple steps - to start with - to ensure that you are doing the right thing:
Choose the right trade association after conducting a careful due diligence that will look at:
- Size, membership and entry criteria
- Goals of the association
- Existence of clear and transparent rules to be followed for the meetings (disciplining e.g. agenda, minutes and archiving), including a clear commitment to complying with the law
- Rules for collection and appropriate dissemination of data pertaining to members
- Level of awareness - antitrust compliance culture and tone from the top
- Existence of antitrust compliance safeguards effectively implemented to mitigate risks – any compliance programme or legal advisor attending meetings?
- Past and current involvement in antitrust cases…any negative reputational consequences or fines?
It may be sufficient to have a word with the association’s Director General (or similar association official) to understand that antitrust compliance is (or is not!) at the top of the agenda.
Include a specific section on trade associations in your antitrust compliance programme including:
- Training on antitrust risk entailed by participation to trade association meetings
- Clear rules to follow before and during the meeting
- Specific obligations following the meeting, including internal reporting and meeting output review
- Trade association membership tracking tool – how many employees are currently active in trade associations? Is membership appropriate? Have you conducted any due diligence on the association?
Select the most suitable candidates to represent your company, based on the following:
- Subject matter competence – make sure your representatives know what they are talking about (and do not share competitively sensitive information)
- Good level of the representatives’ understanding of the company’s compliance culture
- Specific awareness on types of discussion/sensitive topics that may raise concerns and what to do should this happen
- Diligence in complying with your own company’s policies and rules – any breach?
- Current or past involvement in antitrust cases
…And what about YOU? Have you checked which goals your company intends to achieve through the membership, or in a specific meeting, before joining as a company representative?
In order to let trade associations (and similar industry bodies / networks) continue to perform a key role in the economy and in the development of the industry thinking, also in terms of creating a pro-competitive environment, all stakeholders involved in this activity need to be aware of and comply with antitrust rules.
In order to keep the (antitrust) compliance wheel rolling, both individuals, companies and trade associations have to work together to ensure we all remain compliant: there is a role for everyone!
Sources of guidance include:
Competition Bureau, Canada
CMA, United Kingdom
- Competition law compliance: guidance for businesses
- Competition law: dos and don'ts for trade associations
International Chamber of Commerce (ICC)
- ICC Antitrust Compliance Toolkit
- ICC Antitrust Compliance Toolkit for Trade Associations (to be released in 2018)
|Simone Pieri is co-Chair of the Compliance and Advocacy Task Force of the ICC Competition Commission. He has been responsible for antitrust affairs of a major Italian banking group - where he was in charge for the implementation of the compliance programme – and still operates in the financial sector. He is Chairman of ICLA Italia (the Italian branch of ICLA International, In House Competition Lawyers’ Association).||Caroline Inthavisay is in charge of the ICC Commission on Competition at the ICC Global Headquarters based in Paris. Her role since she joined the ICC Department of Policy and Business Practices in 2007 is to identify and analyse policy issues affecting international trade and investment and to oversee the development of rules and policy recommendations to promote business self-regulation and best practices. She was also involved in other policy areas at ICC such as Transport & Logistics and Anti-Corruption.