The work of the IBA association strictly adheres to antitrust law. The compliance programme establishes guidelines that, from the outset, are intended to prevent any conduct that could give rise to antitrust concerns. This programme has been set up in part due to the drastic rise in fines for antitrust violations and the fact that, according to EU Antitrust Regulation 1/2003 (in force since 1 May 2004), antitrust violations by an association can be punished with fines of up to 10% of the total turnover of the member companies. The EU antitrust regulation stipulates that if an association becomes insolvent, the fine must be paid by the member companies.

The following guidelines are the most important principles for lawful conduct under antitrust law; they are by not exhaustive. It is essential that every association member and every association employee is aware of their responsibilities.

The following guidelines apply to the association, to each committee and working group as well as to individual members.

As a matter of principle, no member of the IBA should participate in or discuss the following actions that violate the prohibition of anti-competitive agreements:

• Price fixing, including the coordination of price ranges, discounts or other pricing features; this also applies to discussions about prices without a binding agreement;
• market divisions such as the allocation of customer groups or regions between competitors or agreements in tenders;
• agreements on the amount of investments or production quotas;
• the exchange of antitrust-sensitive information, for example on business plans, customer relationships or current/planned bids for tenders;
• joint negotiations, joint sale or (unless after legal review) joint purchase;
• any other agreement that restricts competition, such as collective boycotts, agreements for the purpose of direct competition or any joint action intended to exclude competitors or new entrants from the market.

Neither the written form nor the binding nature are prerequisites for an agreement that falls under the antitrust prohibition. The same applies to the resolution of an association. An oral exchange of information or an informal agreement may also constitute a breach, even if it is only a “gentlemen’s agreement”. An agreement does not have to be made in writing or be binding in order to be prohibited under antitrust law.

There are three specific areas that require special attention with regard to antitrust regulations: the membership rules of our association; the industry-wide standards we set; and the information we share at association meetings.

Membership Rules

We may not exploit the access to our membership to secure objectively unjustified competitive advantages for our members.

As a result,

• our membership criteria are precise, objective and comprehensibly necessary for the purpose and efficient management of our association. We must apply these in a non-discriminatory way. We must not make a decision for competitive reasons.
• Any exclusion of a member or rejection of a membership application should be based on objective criteria and may be subject to legal review. The decision on an exclusion or the rejection of an application may be appealed to an independent court.
• Membership and access to information must not be dependent on a commitment not to be active in competing associations (unless this would be absolutely necessary to ensure the existence of our association, in which case we should seek legal advice).
• Restrictions on members or disciplinary rules must be objectively and reasonably necessary for the purpose and good management of our association. In such cases, members have the right to be heard and have recourse to an independent court.

Industry Standards

The IBA can develop and market industry standards, codes of practice or general terms and conditions. These standards are permitted where they improve the quality of our members’ products or services; however, we are not authorized to use them to restrict competition.

As a result, the following rules apply:

• standards must relate to specific permissible objectives and must not be more detailed or narrower than is justifiably necessary. Standards should not be used to increase barriers to market entry or to exclude competitors.
• The details of standards should be publicly accessible, even for non-members.
• Compliance with the standards should be voluntary (unless required by law). Standards should not prohibit the use of competing technologies in compliant products.
• The awarding of certificates or quality labels is permitted as long as the award criteria are objective and objectively justified (e.g. based on verifiable quality levels) and are not applied in a discriminatory manner. Fees should be based on costs.
• The use of general terms and conditions should not be mandatory and general terms and conditions should not attempt to standardize price-related clauses.
• Guidelines on best practices must not be mandatory and must not restrict the way in which participants compete with each other.

Information Sharing

Members may not share competition-sensitive information about their own or their competitors’ business strategy or anything that could be considered a trade secret. We should pay particular attention to conversations with other members who are or may become competitors, both at formal events and during informal meetings and even in social life.

Topics that should be avoided:

• prices and discounts, price-related contractual provisions;
• customer relationships, ongoing tendering procedures or planned bids in tenders;
• business plans or business strategies;
• competitive strengths or weaknesses in individual areas;
• planning of production and production quantities;
• product development or investment in research programmes that are not yet widely known; 
• individualized market share data.

Benchmarking is permitted as long as the company that collects and processes the data is subject to confidentiality obligations and the data does not relate or cannot be related to specific competitors. Market surveys are permitted as long as the results are presented in statistical form, do not contain individual price information, and competition-sensitive information such as market shares remains anonymous.

It is acceptable to discuss the political environment, educational and scientific developments, regulatory measures of general interest, demographic developments, general industry developments, publicly available information and historical information that has no bearing on future business. Members may display or demonstrate new or existing products, but may not discuss non-public research and development or production projects.

Companies that have the economic power to act independently and set prices regardless of customer demand, supplier requirements or competitive pressure have a special obligation not to restrict competition and not to take advantage of their customers. Dominance is assumed if a company has a dominant share of a market (normally 40% or more).
Even if individual members are not dominant, the members of associations can be considered dominant collectively on certain product markets if four or fewer of them together have a large market share of deliveries (approximately 80%) and if they are in contact with each other through the association. In such an oligopolistic market, parallel behaviour that restricts competition or exploits customers can be classified as abusive, even if there is no evidence of active collusion.

As soon as the behaviour of a dominant company has an anti-competitive purpose or effect without objective justification, this can result in fines and civil liability. It is not necessary to prove the existence of an agreement or concerted practice.

Examples of possible abuses of market dominance include:

• Imposing excessive or discriminatory conditions on customers or suppliers;
• offering prices that are below cost with the aim of driving competitors out of the market;
• restricting production or technical development;
• refusing to supply competitors or customers with products that they need and cannot buy elsewhere;
• making the supply of a product that a customer requires dependent on the purchase of another product or service that the customer does not wish to buy (tying).

The mere presence at meetings at which anti-competitive behaviour is discussed may constitute a violation of antitrust rules. Check the agenda, object to prohibited topics of discussion in advance and stay away from the meeting if the agenda remains unchanged. As soon as you become aware of a violation, contact your legal counsel, file an objection and make sure that your objection is recorded. If you cannot attend a membership meeting, check the minutes after you receive them.

If you are unsure whether a particular agreement, meeting or exchange of information between competitors is permitted, seek legal advice immediately.