Argentina’s Antitrust Authority issues an Antitrust Law Guide for Trade and Professional Associations
In December 2018, the Argentinean Antitrust Commission (CNDC) issued an Antitrust Law Guide for Trade and Professional Associations (the “Antitrust Law Guide”) to divulge and create awareness of the recently enacted Antitrust Law No. 27,442 (the “Antitrust Law”) and thus prevent potential anticompetitive practices within them, since trade associations can be favorable environments for its members to carry out conducts which may be at odds with the Antitrust Law.The Antitrust Law Guide summarizes how the Antitrust Law applies to trade associations and its members, and provides several recommendations on how to avoid running afoul of the Antitrust Law.
The underlying principle of the Antitrust Law Guide (and of the Antitrust Law, more generally) is that each company should adopt its commercial decisions in an independent and autonomous manner, rather than by means of coordinating with its competitors, for which trade associations are naturally an ideal, and widely used, forum.
To this end, the Antitrust Law Guide makes the following recommendations, among several others, to trade and professional associations active in Argentina:
(i) Associations should not issue decisions or recommendations to their members (regardless of whether they are binding or not) on matters relating to prices, quantities, allocation of markets, customers or territories or coordinating positions in tenders, as doing so could entail an object restriction of competition for which anticompetitive effects are legally presumed under section 2 of the Antitrust Law;
(ii) Associations should not be a channel for members to share competitively sensitive information (e.g., current or future prices, customers, costs, business plans, etc.). Members cannot be forced to share any information, so when requesting it, the association should always explicitly indicate that the provision of the information is not mandatory. Furthermore, the Antitrust Law Guide recommends collecting only historical information (for which a 12-month-old threshold is set), disseminating it in an aggregate manner, on general subjects and for general reference purposes. To avoid trade associations meetings being an instance to exchange competitively sensitive information among competitors, the CNDC recommends trade associations to record and control meetings; to keep a detailed agenda of the issues to be discussed; to seek the advice and assistance of lawyers specialized in antitrust law to identify beforehand potentially problematic issues; and to immediately leave meetings if topics that relate or could lead to an infringement of the Antitrust Law are discussed;
(iii) Associations must not affect the entry or exit of companies from the market through their association requirements; which must be objective, clearly defined and not be discretionary;
(iv) Associations should not set standards for the industry with no technical support that could have the object or effect of artificially excluding competitors from the market. The adoption of industry standards by trade associations should be carried out only when necessary to provide information to consumers and should be decided as a consequence of a transparent process, through which as many companies as possible reach consensus for the application of standards that should be open, clearly defined and non-discriminatory;
(v) Associations should refrain from developing rules that could prevent members from advertising their prices, discounts or business practices; and
(vi) Associations are encouraged (and so are its members) to adopt internal antitrust policies or compliance programs both to prevent and to detect infringements to the Antitrust Law at an early stage of implementation, which could allow applying to the leniency programme recently enacted under the Antitrust Law.
All in all, the Antitrust Law Guide condenses the CNDC’s stance on how trade and professional associations and their members should conduct business to avoid breaching the Antitrust Law, and it also sets out the best antitrust practices that should be adopted to either eliminate or mitigate any potential risks in connection with the application of the Antitrust Law.
A Spanish version of the Antitrust Law Guide is available at: https://www.argentina.gob.ar/sites/default/files/guia_camaras_y_asociaciones_empresariales_10-12-2018.pdf