In December 2021, Serbian Anti-Monopoly Commission (“Commission”) published Guidelines for Preparation of Program of Compliance with Anti-Trust Laws (“Guidelines”), which underline the importance of education about anti-trust law as well as adoption and implementation of adequate procedures on a company level. Guidelines contain analysis of potential infringements of anti-trust laws with advice and insights on how to identify and adequately address potential problems and risks.
Since in one of our earlier blogs we discussed Commission’s new practice on restrictive agreements (click here), the focus of this article will be on exchange of information between market participants.
This is an especially interesting and sensitive subject, since communication and exchange of information between companies can seem benign and immaterial but in some cases it can significantly facilitate collusion and coordination between competitors, and by that virtue amount to unlawful restrictive agreement.
According to the Guidelines, exchange of especially sensitive information is generally problematic, which includes sale volumes or value, market shares, prices (especially future prices), production costs and output, discounts and rebates, as well as information on intended business strategies. Naturally, exchange of information which pertains to division of markets, boycotting of competitors/suppliers/customers or bid rigging is strictly prohibited.
The notion of strategic business information is deemed to encompass recent individualized commercial information (sales, volumes, market shares etc.), by which it is generally meant not older than one year. Exchange of such information is also highly suspicious since it provides an insight into current as well as future business strategy.
On the other hand, exchange of information that does not directly or indirectly pertain to future commercial strategies, and if such information is aggregated and anonymous, is not problematic from anti-trust perspective. Same applies to historic information (older than 1 year) collected for statistical purposes or by trade organization, as well as information which is already publicly available.
Guidelines also lay out acceptable and unacceptable sources for obtaining information about competitors. Acceptable sources being media and other publicly available sources, fairs and conversations with buyers (if not directed at obtaining confidential information about competitors) and market analyses by independent companies. On the other hand, it is not acceptable to obtain confidential or proprietary information about competitors, either from insiders, former employees or third persons.
Although not mentioned in the Guidelines, it is worth noting that obtaining or requesting commercial information from buyers or suppliers can also be highly problematic. Specifically, sale or supply contracts often contain clauses on delivery of certain information about sales or supply, which may include information about specific buyers, suppliers or competitors. Legal treatment of such clauses depends on the type of information, purpose and whether it is general/aggregated or it is attributable to individual market participants. In any case, companies are ought to carefully examine any such clauses or practices and whether such information can be considered strategic or proprietary.
Guidelines provide some basic instructions for market participants on how to avoid breaches of anti-trust regulations in this area. For instance, companies and their employees should not engage in discussions concerning confidential or strategic information pertaining to other market participants, and should not participate in any meetings with this topic (including those under the auspices of trade organizations). Participants should clearly and resolutely distance themselves from any such discussions or correspondence, because passive attitude does not necessarily absolve them from responsibility. If a company has a dominant market position it should pay special attention and rigor in order to avoid potential infringements.
Finally, market participants are advised to review their contracts and other business documents and to revise them if any potentially restrictive provisions are detected, as well as to consult with legal experts or lawyers regarding compliance issues and potential risks.
To sum up, companies should pay close attention to the issue of information exchange, and set procedures and clear boundaries which alleviate the risk of infringements and consequent sanctions. Guidelines provide a good basis for this, but they could not encompass all possible situations with sufficient precision, meaning that companies will have to develop these basic principles on their own (or with the help of outside experts).
Company-level procedures should take into account the industry and line of business, market shares, as well as other circumstances specific to the company in question, and they can be a part of the broader Program of Compliance.
Damjan Despotović, partner
This text is for informational purposes only and is not legal advice. Feel free to contact us if you need additional information.