🗊Презентация Dutch Lawyer Training Slides presented in Belgium

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Compliance Training 24 September 2012
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Compliance Training 24 September 2012

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Today’s topics Compliance. Why bother? The rules The authorities Corporate sanctions Personal sanctions Do’s & Don’ts
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Today’s topics Compliance. Why bother? The rules The authorities Corporate sanctions Personal sanctions Do’s & Don’ts

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Recent developments The German competition authority has extended its in-depth review of constructionmaterials acquisiton (Xella’s / H+H International). OFT uncovers antitrust conduct on aggregates market, including concrete. OFT has extended its in-depth review of in constructionmaterials Joint Venture Anglo American and Lafarge. European Commission opens antitrust proceedings against a number of cement manufacturers.
Описание слайда:
Recent developments The German competition authority has extended its in-depth review of constructionmaterials acquisiton (Xella’s / H+H International). OFT uncovers antitrust conduct on aggregates market, including concrete. OFT has extended its in-depth review of in constructionmaterials Joint Venture Anglo American and Lafarge. European Commission opens antitrust proceedings against a number of cement manufacturers.

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Compliance. Why bother? What are CRH’s principal aims? To recognize and prevent possible infringements To act in accordance with: European and national competition legislation CRH Code of Business Conduct CRH Code of Conduct - Competition
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Compliance. Why bother? What are CRH’s principal aims? To recognize and prevent possible infringements To act in accordance with: European and national competition legislation CRH Code of Business Conduct CRH Code of Conduct - Competition

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Compliance. Why bother? Compliance Manual contains general rules Not exhaustive No concrete advice In case of doubt: always consult the CRH legal service
Описание слайда:
Compliance. Why bother? Compliance Manual contains general rules Not exhaustive No concrete advice In case of doubt: always consult the CRH legal service

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The rules
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The rules

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The rules: key legislation Treaty on the functioning of the European Union Article 101 TFEU Article 102 TFEU Law of 15 September 2006 to protect the economic competition Article 2 Law Article 3 Law
Описание слайда:
The rules: key legislation Treaty on the functioning of the European Union Article 101 TFEU Article 102 TFEU Law of 15 September 2006 to protect the economic competition Article 2 Law Article 3 Law

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The rules: key principles What kind of conduct infringes competition law? Cartels (and other covert conduct): any improper agreement or coordination, primarily between ‘undertakings’ (competitors, distributors, traders, suppliers, purchasers => public and private parties in your own country and abroad) Dominant position: abuse
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The rules: key principles What kind of conduct infringes competition law? Cartels (and other covert conduct): any improper agreement or coordination, primarily between ‘undertakings’ (competitors, distributors, traders, suppliers, purchasers => public and private parties in your own country and abroad) Dominant position: abuse

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The rules: categorizing conduct
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The rules: categorizing conduct

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The rules: cartels
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The rules: cartels

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The rules: cartels Article 101 TFEU and Article 2 Law prohibit: agreements between undertakings, which have as their object or effect the prevention, restriction or distortion of competition within the internal market. Additional element of Article 101 TFEU: trade between Member States must be affected
Описание слайда:
The rules: cartels Article 101 TFEU and Article 2 Law prohibit: agreements between undertakings, which have as their object or effect the prevention, restriction or distortion of competition within the internal market. Additional element of Article 101 TFEU: trade between Member States must be affected

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The rules: horizontal agreements Prices / discounts / margins Information exchange Market-sharing and customer allocation Restriction of production, markets, developments and investments Boycots and refusal to supply Tying
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The rules: horizontal agreements Prices / discounts / margins Information exchange Market-sharing and customer allocation Restriction of production, markets, developments and investments Boycots and refusal to supply Tying

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Example 1/8 Two managers work for competing construction firms. They meet and agree to offer customers the same discount. (a) One month later, they both act as agreed upon. (b) They ignore the agreement and never execute it. Same case, but this time, instead of a discount, they both agree to demand a higher price (surplus).
Описание слайда:
Example 1/8 Two managers work for competing construction firms. They meet and agree to offer customers the same discount. (a) One month later, they both act as agreed upon. (b) They ignore the agreement and never execute it. Same case, but this time, instead of a discount, they both agree to demand a higher price (surplus).

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Example 2/8 A number of your customers is always postponing payment. Their behaviour is getting worse. Both you and your competitors suffer from this behaviour. One day, your meet a number of competitors at a business association. Complaining about payments, you all decide to draft a ‘black list’, naming and shaming these customers. Is this allowed?
Описание слайда:
Example 2/8 A number of your customers is always postponing payment. Their behaviour is getting worse. Both you and your competitors suffer from this behaviour. One day, your meet a number of competitors at a business association. Complaining about payments, you all decide to draft a ‘black list’, naming and shaming these customers. Is this allowed?

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Example 3/8 A producer of construction materials decides from now on, it will distribute its products exclusively through specialised shops (excluding and bypassing large D.I.Y. chains). Is this allowed?
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Example 3/8 A producer of construction materials decides from now on, it will distribute its products exclusively through specialised shops (excluding and bypassing large D.I.Y. chains). Is this allowed?

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Example 4/8 Recently, you offered to supply a customer with construction materials. The customer by way of accident sends you your competitor’s offer back. You now know your competitor’s pricing. What do you do?
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Example 4/8 Recently, you offered to supply a customer with construction materials. The customer by way of accident sends you your competitor’s offer back. You now know your competitor’s pricing. What do you do?

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Exchange of information Publicly available information Aggregated information Historical company data without bearing on future market behaviour Exchange of information of a competitive nature Structural exchange of information (e.g. cost, quantity, price, discount, customer portfolio, capacity)
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Exchange of information Publicly available information Aggregated information Historical company data without bearing on future market behaviour Exchange of information of a competitive nature Structural exchange of information (e.g. cost, quantity, price, discount, customer portfolio, capacity)

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“Hub and Spoke” cartel Competitors exchange company-sensitive information through a third party e.g. a business assocation or a mutual supplier.
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“Hub and Spoke” cartel Competitors exchange company-sensitive information through a third party e.g. a business assocation or a mutual supplier.

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Example 5/8 Your competitor sends you an e-mail, which contains its future price list. How do you respond?
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Example 5/8 Your competitor sends you an e-mail, which contains its future price list. How do you respond?

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Example 6/8 A number of independent franchise parties belong to the same chain of D.I.Y. Stores. They agree none of them will buy products from supplier X anymore. Is this allowed?
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Example 6/8 A number of independent franchise parties belong to the same chain of D.I.Y. Stores. They agree none of them will buy products from supplier X anymore. Is this allowed?

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Example 7/8 At a meeting organised by a trade organisation, two managers of competing D.I.Y. chains meet. They discuss their respective chains’ intention to expand / shut down both their shops. In the end, the two managers agree it would be best if their chains did not expand / shut down their shops. Is this allowed? Would your answer be different if it concerns two local D.I.Y. Chains (as opposed to the national policy of both chains).
Описание слайда:
Example 7/8 At a meeting organised by a trade organisation, two managers of competing D.I.Y. chains meet. They discuss their respective chains’ intention to expand / shut down both their shops. In the end, the two managers agree it would be best if their chains did not expand / shut down their shops. Is this allowed? Would your answer be different if it concerns two local D.I.Y. Chains (as opposed to the national policy of both chains).

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Example 8/8 Two managers of competing chains discuss the local government’s intention to change the municipal development plan. This would mean a third party could establish itself in their area. The two managers agree they will both appeal their local government. Are the two managers allowed to discuss this? Would your answer be any different in case the two chains appeal (1) together, or (2) separately.
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Example 8/8 Two managers of competing chains discuss the local government’s intention to change the municipal development plan. This would mean a third party could establish itself in their area. The two managers agree they will both appeal their local government. Are the two managers allowed to discuss this? Would your answer be any different in case the two chains appeal (1) together, or (2) separately.

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The rules: vertical agreements Vertical price-fixing Agreement aimed exclusively at restricting parallel import Market-sharing and customer allocation, unless…
Описание слайда:
The rules: vertical agreements Vertical price-fixing Agreement aimed exclusively at restricting parallel import Market-sharing and customer allocation, unless…

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The rules: vertical price-fixing Broad interpretation: Minimum price, fixed price, discounts Price-related bonus terms or promotion Price-related suspension, delay, sanctions Allowed in principle: List of recommended prices Maximum resale prices
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The rules: vertical price-fixing Broad interpretation: Minimum price, fixed price, discounts Price-related bonus terms or promotion Price-related suspension, delay, sanctions Allowed in principle: List of recommended prices Maximum resale prices

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Example 1/2 CRH agrees with a customer that in Belgium that customer will: sell stones for a fixed price provide a certain discount to its customers receive a bonus if it respects CRH advisory prices receive a bonus depending on how much it orders
Описание слайда:
Example 1/2 CRH agrees with a customer that in Belgium that customer will: sell stones for a fixed price provide a certain discount to its customers receive a bonus if it respects CRH advisory prices receive a bonus depending on how much it orders

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Example 2/2 CRH has a new line of products and developed a promotion campaign. A large D.I.Y. chain is interested, if it’s the only one amongst its competitors allowed to participate in the campaign. CRH is willing to give the D.I.Y. chain exclusivity. Is this allowed?
Описание слайда:
Example 2/2 CRH has a new line of products and developed a promotion campaign. A large D.I.Y. chain is interested, if it’s the only one amongst its competitors allowed to participate in the campaign. CRH is willing to give the D.I.Y. chain exclusivity. Is this allowed?

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The authorities Two principal authorities: European Commission (DG COMP) Belgian Competition Authority General Competition Directorate Competition Council Regulators, investigators, enforcers
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The authorities Two principal authorities: European Commission (DG COMP) Belgian Competition Authority General Competition Directorate Competition Council Regulators, investigators, enforcers

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The authorities: investigative powers Far-reaching powers of investigation: Information requests and hearings (orally, in writing) Inspection business premises (dawn raid) Inspection non-business premises (e.g. private homes) Confiscate or copy documents, files and computer data Telephone tap / tape recordings
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The authorities: investigative powers Far-reaching powers of investigation: Information requests and hearings (orally, in writing) Inspection business premises (dawn raid) Inspection non-business premises (e.g. private homes) Confiscate or copy documents, files and computer data Telephone tap / tape recordings

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The authorities Domestic courts Judicial review No power to impose fines May however award damages Additional PR and reputation risk Potential multiplier in terms of corporate damage (7,5x fine)
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The authorities Domestic courts Judicial review No power to impose fines May however award damages Additional PR and reputation risk Potential multiplier in terms of corporate damage (7,5x fine)

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Corporate sanctions Main corporate sanctions: Agreement is null (no conversion possible) Fine up to 10% of annual group (!) turnover Civil claims from third parties Loss of reputation (naming and shaming)
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Corporate sanctions Main corporate sanctions: Agreement is null (no conversion possible) Fine up to 10% of annual group (!) turnover Civil claims from third parties Loss of reputation (naming and shaming)

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Corporate sanctions Heat equipment: EUR 3,5 million (Competition Council) Washing powder: EUR 315 million (EC) Prestressing steel products: EUR 269 million (EC) LCD-panels: EUR 648 million (EC)
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Corporate sanctions Heat equipment: EUR 3,5 million (Competition Council) Washing powder: EUR 315 million (EC) Prestressing steel products: EUR 269 million (EC) LCD-panels: EUR 648 million (EC)

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Corporate sanctions Little room for justification: I didn’t know this was not allowed! I’m doing this for years! Other undertakings act the same way as we do! Otherwise I couldn’t go through with the deal! But this was our largest purchaser! It was just a one-off exception!
Описание слайда:
Corporate sanctions Little room for justification: I didn’t know this was not allowed! I’m doing this for years! Other undertakings act the same way as we do! Otherwise I couldn’t go through with the deal! But this was our largest purchaser! It was just a one-off exception!

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Personal sanctions Fines can be imposed on ‘directors’ who: Instruct employees re improper conduct Manage improper conduct First fines already imposed on CFO’s and CEO’s
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Personal sanctions Fines can be imposed on ‘directors’ who: Instruct employees re improper conduct Manage improper conduct First fines already imposed on CFO’s and CEO’s

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Personal sanctions Instructions regarding certain conduct: Doesn’t need to be a formal director Power to dispose of Active / passive (‘see all, hear all, say nothing’) Managed certain conduct: Implies a close connection with the infringement The principal should have given an explicit mandate Narrower than actual leadership
Описание слайда:
Personal sanctions Instructions regarding certain conduct: Doesn’t need to be a formal director Power to dispose of Active / passive (‘see all, hear all, say nothing’) Managed certain conduct: Implies a close connection with the infringement The principal should have given an explicit mandate Narrower than actual leadership

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Do’s and don’ts Prices. Don’t talk to competitors about: Prices, rebates or costs Future pricing In case of a pricelist, note the name of the client Price negotiation and/or agreements with third parties Don’t participate in meetings with competitors One exchange, e-mail or meeting can be enough!
Описание слайда:
Do’s and don’ts Prices. Don’t talk to competitors about: Prices, rebates or costs Future pricing In case of a pricelist, note the name of the client Price negotiation and/or agreements with third parties Don’t participate in meetings with competitors One exchange, e-mail or meeting can be enough!

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Do’s and don’ts Market-sharing. Don’t talk to competitors about: Allocation of sale territories Allocation of customers Market shares Don’t participate in meetings with competitors
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Do’s and don’ts Market-sharing. Don’t talk to competitors about: Allocation of sale territories Allocation of customers Market shares Don’t participate in meetings with competitors

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Do’s and don’ts So what should you do? Please understand that meetings with competitors are dangerous. Watch what you say. Clearly distance yourself when a competitor suggests e.g. to fix prices or share the market. Don’t remain silent; denounce. Get up, get out and confirm your response in writing. Be careful with agreements of an exclusive nature. In case of doubt: always consult the CRH legal service.
Описание слайда:
Do’s and don’ts So what should you do? Please understand that meetings with competitors are dangerous. Watch what you say. Clearly distance yourself when a competitor suggests e.g. to fix prices or share the market. Don’t remain silent; denounce. Get up, get out and confirm your response in writing. Be careful with agreements of an exclusive nature. In case of doubt: always consult the CRH legal service.

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Questions
Описание слайда:
Questions

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