Luiza Bedros, Senior Associate, Noerr

Representatives of the Competition Council and professional associations recently discussed with lawyers specialized in antitrust issues, the intrinsic risks to the activities of professional associations, measures to comply with competition law and key procedures that members of these associations should take in calculation to not violate Romanian competition policies.

Luiza Bedros, an antitrust lawyer and Senior Associate at Noerr, identifies such specific activities: "We are talking in particular about sharing information among members of an association, internal reports and statistics, and benchmarking, namely gathering information about competitors and about market trends. Exchange of information between competitors may result in restricting competition (thus becoming illegal) if such an exchange includes strategic information. Strategically understood is any information that reduces market uncertainty and competitiveness, and may refer to prices, customer lists, production costs or capabilities, marketing plans or R & D programs and results. "

An activity such as industry statistics will favor competition by allowing players in the sector to make informed, better choices and to adapt their strategy to market conditions more effectively.

"The following basic principles and control measures can help eliminate competitive risks, especially when comparing comparative studies with data from members of an association," adds Luiza Bedros.

The market study must be carried out by an independent third party (eg a consulting firm or research institution), which collects, corroborates and then distributes the results of the report to the participants;

The data collected must be anonymized and aggregated in a way that does not allow the individualization of a particular company or source of information. Study participants must be large enough to ensure confidentiality of data. As a rule, at least five participants are required and no participant's data should represent more than 25% of the statistical data;

The study should target past and not present or future data (eg prices, sales, production capacities). There is no predefined threshold according to which the data become earlier or old enough to not involve risks, largely depending on the nature of the data, the degree of cumulation, the frequency of the exchange of information and the characteristics of the relevant market. Generally, data older than one year are considered historical data;

The developer of the study must provide appropriate security measures to ensure that participants do not have access to others' data or decompile sources of information;

Particular attention should be paid to IT platforms used jointly by members of an association, especially on the terms and conditions imposed on users and possible technical restrictions implemented.

Activities specific to professional associations can therefore facilitate competition issues. Taking into account that sanctions in the field are particularly serious and with a significant impact on the association and its members, it is advisable to know the risks and to prevent possible deviations from the competition rules.

by Luiza Bedros, Senior Associate, Noerr