The Commission has identified a need to provide guidance to trade associations and public and private stakeholders on the sharing of information between competitors. The guidelines present the general approach the Commission will follow in determining whether information exchange between firms that are competitors amounts to a contravention of section 4 of the Act. The guidelines are general and are not market, sector or industry specific.
The guidelines deal mainly with the exchange of competitively sensitive information between competitors directly or through a third party such as a Trade Association, an accounting firm or a private company that collects firms’ information, processes it and disseminates it among firms.
“Competitively Sensitive Information” is defined as “information that is important to rivalry between competing Firms and likely to have an appreciable impact on one or more of the parameters of competition (for example price, output, product quality, product variety or innovation). Competitively sensitive information could include prices, customer lists, production costs, quantities, turnovers, sales, capacities, qualities, marketing plans, risks, investments, technologies, research and development programmes and their results”
The guidelines describe those information exchanges that most often occur and that are likely to be subject to investigation and to form the subject of a prosecution by the Commission, because they facilitate or amount to collusion and may enable firms to achieve collusive or coordinated outcomes without the need to conclude explicit agreements to co-operate.
