What is the Guide’s scope?
The Guide’s finalisation was a rather long process as the draft version was already published in September last year and interested parties were given the opportunity to submit comments during a public consultation that ran from 12 September 2018 to 15 November 2018.
In the Guide, the BCA starts with a more general outline of the competition law framework and then indicates, on the basis of its own decision-making practice and that of the European competition authorities, what is permitted and what is absolutely not.
The Guide does so by means of a number of concrete examples relating to various forms of information such as periodic market overviews, price comparisons, information on expected market changes and, finally, modules and formulas for cost calculation and the determination of prices.
These examples are based not only on (public) formal decisions, but also on the BCA’s informal views and contacts in recent years. The latter are a very useful additional source of information and can be found in the Guide’s Appendix 1.
What is new since the draft version?
If we look at the final version, it is noticeable that there have been some changes compared to the draft version. In addition to price comparison platforms, there is now explicit reference to new technologies, such as algorithms, which can facilitate the exchange of information between competitors. Concrete examples of this, however, are lacking. The BCA also indicates that the exchange of information that does not relate to market behaviour and that is part of lobbying activities towards the government is permitted.
The final text is clearly more in line with what exists at European level (Horizontal guidelines, de minimis notice, etc.) and therefore tends towards guidelines rather than a real practical guide. Another important difference is the fact that the part relating to information exchange in the context of distribution agreements (agreements in a vertical relationship) has been removed.
This is not the first time that the BCA has published information guides to provide market players with the necessary support in assessing what is acceptable and what is not. In 2016, it published its guide for SMEs and, in 2017, a guide for contracting authorities on collusion in public procurement was drawn up.
It is noticeable that the latest Guide is less practical and didactic than its predecessors. This is probably also the result of the subject matter. The lawfulness of information exchange in associations of undertakings always depends on the concrete market conditions (e.g. the number of players on the relevant market) and the characteristics of the information exchanged (type of information, age, aggregated or individual, etc.).
Nevertheless, this Guide will hopefully trigger the necessary reflexes among the many associations of undertakings in Belgium. The risks of a possible infringement cannot be underestimated with fines that (as explicitly provided for in the law since the recent reform of the competition rules) can amount to 10% of the sum of the turnovers of all members active on the market concerned.