Introduction
The NBF Competition Law Compliance Policy states that members must comply fully with competition law, when meeting in connection with Federation business. These guidelines accompany the policy and set out some general “Dos and Don’ts” which should help both the NBF, and our members, avoid the serious consequences of falling foul of competition law.
Overview of UK Competition Law
The Competition Act 1998 (“the Competition Act”) prohibits commercial agreements that restrict competition and affect trade in the UK (or a part of it), to an “appreciable” extent. Agreements can be “saved” from this prohibition if they benefit from a “block” exemption (an exemption which covers a certain category of agreements), or meet certain criteria against which individual agreements can be assessed.
Agreements or understandings that amount to serious breaches of the law (such as price-fixing) can always be viewed as “appreciable” and are unlikely to be capable of being “saved”. Furthermore, the Enterprise Act 2002 makes it a criminal offence to engage in certain forms of anti-competitive cartel, where this is done “dishonestly”.
The Competition Act also prohibits abuse of a dominant position in the market. As this is not a real concern for the NBF, these guidelines focus on the ban on restrictive agreements.
To be caught by the Competition Act, an “agreement” does not have to be in writing and can even be implied from conduct. This means that sharing commercial information directly with competitors can create an anticompetitive agreement and is generally unacceptable. It also means that it is possible to breach the law simply through a casual conversation, and subsequent conduct – not just written agreements are caught.
Practical Dos and Don’ts
Contact with competitors is inherently risky from a competition law point of view. Set out below are some dos and don’ts relating to key areas of concern for the NBF.