Antitrust compliance

ECR Europe Legal Compliance Programme

Onderstaande tekst bestaat uit Annex 1 en Annex 2 van de ECR Europe Legal Compliance Programme. 

Annex 1

ECR Europe: Demand side projects EC competition law guidelines

These guidelines offer only general guidance and are not a substitute for legal advice on specific situations. Companies are individually responsible for their compliance with the law and are therefore urged to obtain legal advice of their own before committing themselves to any demand side or other ECR project. For the avoidance of doubt, no liability can be accepted in connection with the use of these guidelines.

In demand side projects such as Consumer Value Management, Category Management, Efficient Product Introduction, JAG, etc, close co-operation and confidence between retailer and manufacturer is key to the project's success. However, it is also essential that all ECR projects are planned and implemented without violating EC competition law rules. The EC competition law rules apply to all businesses in all circumstances, inside or outside the ECR context. Below, we wish to explain the most important application of these rules to ECR demand side projects. The EC competition law rules are however also applicable to supply side projects.

The following basic rules should always be applied. Failure to do so would mean running a serious risk of violating the law. In order to avoid any misunderstandings in their day-to-day practice, trading partners could adopt point 1 of these rules as part of their agreement to co-operate in ECR demand side projects.

1. The respective role of manufacturer and retailer

According to the established practice of the European Commission, any agreements or understandings between a supplier and a retailer restricting the retailer's freedom to determine his resale prices are a violation of Article 81 EC Treaty (resale price maintenance is prohibited). A supplier may only give non-binding "recommendations" on resale prices - without any contractual commitment on the part of the retailer to implement such recommendations (and without any pressure or economic incentive by the supplier on the retailer to implement the recommended prices).

Similarly, a retailer must not enter into any agreement or understanding with a manufacturer on what products (notably of competitors) should be present on the shelf or what the terms and conditions for stocking any products should be. The manufacturer can of course agree with the retailer which of that manufacturer's own products are to be listed.

Therefore, it is essential that the manufacturer only gives non-binding recommendations to the retailer on how to target specific consumer groups, how to improve the category, what products should be included (removed, retained or added) in the category, what recommended retail price ranges to apply (for example "premium", "discount" range), or how to make a newly launched product more successful on the shelf.

The retailer remains free to follow or not to follow the manufacturer's recommendation. The retailer should not enter into any agreement or understanding with the manufacturer concerning the setting of retail prices in the category, the selection of products for a category, or stocking/listing terms and conditions.

A category adviser may not seek to further its own interest by attempting to persuade the retailer to exclude or apply less favourable treatment to competing products.

Nor should there be any agreement to boycott any third party

2. No agreements or exchanges of confidential information between competitors

It is a fundamental rule of EC competition law that there must be no exchange between competitors of commercially sensitive information, such as prices, sales volumes, terms of supply, etc and certainly no agreement or understanding on these issues. This is not just limited to direct exchange between competitors but also exchanges facilitated by third parties (for example manufacturers must not pass any retailer confidential information, including information on pricing, to another retailer and retailers must not pass any manufacturer confidential information to another manufacturer).

There must therefore be no discussion, agreement or understanding between competitors on their shares in the product assortment, composition of the assortment, prices or promotions. A manufacturer may, to the extent necessary for his category management mission, receive information from the retailer on a competitor, but limited to product sales volumes and current retail prices of specific brands. The category management team at the manufacturer must keep all such information confidential and must ensure that the information goes no wider than the specific category management team concerned (i.e. the information is not passed to other teams within the manufacturer, whether dealing with the retailer on other projects or not). A manufacturer must never exchange information with a competitor on his prices, promotions, or other sensitive business information.

Competitors must not jointly develop a methodology with the intention to give them access to sensitive information on their competitors, which they would not have had without the jointly developed methodology, or to collude with competitors. For example, competing retailers should not use a common category adviser to exchange sensitive information with other retailers or to receive co-ordinated pricing or listing recommendations. Also, manufacturers should not use their category adviser position with a view to co-ordinating their conduct with their competitors, for example by conferring or agreeing on category shares, promotions or prices.

Category management should always be a relationship between only one retailer and one manufacturer. The decision to appoint or become a category adviser must be taken on a one-to-one basis (one manufacturer and one retailer) and there must be no communication between competitors on this matter.

Annex 2

Brief EC competition law Compliance guidelines for ECR Europe meetings
The successful work of ECR Europe requires that ECR Europe and its participants regularly meet in person or via telephone conference in order to exchange their views on projects.
These guidelines are not comprehensive and are designed to serve as a reminder only. They apply to all ECR Europe meetings, including those of ad hoc working groups, committees, boards and projects as well as to all informal discussions before, during and after ECR Europe meetings. It is the responsibility of each participant to take its own advice on attendance at ECR Europe meetings and what can and cannot legitimately be discussed. ECR Europe and its participants should read and abide by the EC competition law rules. The Compliance Programme will be available to download from the ECR Europe’s website and copies of these Brief EC Competition Law Compliance Guidelines will be distributed before the meetings, together with the agenda.

ECR Europe is a joint trade association and industry body, with the aim of making the grocery sector as a whole more responsive to consumer demand. Participants in ECR Europe shall not engage in any activity or communications, such as discussions of pricing, allocations of markets, unfair competition, or limitations of supply or bidding procedures, which could constitute violations of applicable laws or regulations.

It is of utmost importance that ECR Europe, its members and participants rigorously adhere to this rule. Any meeting, conference or other contact in the framework of ECR Europe must therefore be conducted in accordance with the relevant competition laws. Failure to comply with the applicable competition laws may bring with it serious consequences for you as individuals, your companies and ECR Europe. Such consequences include heavy fines and in certain cases the imposition of criminal penalties and sentences. You are therefore requested to review and comply with the attached Dos and Don’ts.

“DOs”

  • DO identify clearly the specific legitimate purpose of each ECR Europe project.

  • DO ensure that ECR Europe EC competition law rules are respected.

  • DO stop any meeting when the participants insist on discussing matters that may lead to violations of EC competition law rules.

  • DO submit meeting agendas for legal review before circulating them.

  • DO submit minutes and summaries of meetings for legal review before they are circulated.

  • DO read the competition law caution at the beginning of every meeting.

  • DO inform ECR Europe of any activities at or relating to ECR Europe meetings that might violate EC competition law rules.

  • DO gather competitive information from legitimate sources.

  • DO object to any discussions or meeting activities which appear to violate EC competition law rules.

  • DO leave any meeting at which you feel that matters discussed continue to raise EC competition law concerns and request that your leaving be recorded in the minutes.

“DON’Ts”

  • DON’T give a false impression that ECR Europe is a party to any anti-competitive agreement.

  • DON’T give the impression that one or more ECR Europe participants are being singled out for special treatment.

  • DON’T serve as a conduit or a venue for illegal conduct on the part of ECR Europe participants.

  • DON’T allow ECR Europe participants to engage in discussions or activities that may lead to violations of EC competition law rules.

  • DON’T discuss topics that are not on the agenda agreed in advance.

  • DON’T use ambiguous or misleading expressions when drafting minutes or summaries of meetings.

  • DON’T use ECR Europe as a venue to engage in conduct that could be construed as intended to exclude competitors from the market or create a barrier to market entry.

  • DON’T enter into agreements that restrict any party in its freedom to set prices, choose trading partners, decide product ranges or otherwise manage sales to consumers.

  • DON’T, in either fact or appearance, discuss or exchange comments or other information regarding:
    a. Individual company prices, price changes, price differentials, mark-ups, rebates, allowances, credit terms, or related financial issues, data relevant to price (e.g., costs, production volumes, capacity, inventories, sales), market shares etc.
    b. Industry pricing policies, price levels, price changes, differentials, and the like. 
    c. Changes in industry production volumes, capacity or inventories.
    d. Bids on contracts for particular products and procedures for responding to tender invitations.
    e. Individual company plans concerning the design, production, distribution or marketing of particular products, including proposed territories or customers.
    f. Matters relating to individual suppliers or customers that might have the effect either of excluding them from any market or of influencing the business conduct of firms towards such suppliers or customers.

  • DON’T, even in jest, discuss or exchange information regarding the above matters during social gatherings incidental to ECR Europe meetings.

  • DON’T exchange confidential or commercially sensitive information. You are in the best position to judge what is, and what is not, commercially sensitive or confidential and so responsibility lies with you in the first place.

  • DON’T use a common category adviser to exchange sensitive information or to receive coordinated pricing or listing recommendations.

  • DON’T remain silent when issues that raise EC competition law concerns are discussed.

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