Leading case on information exchange within trade organisations

The ruling of the Tribunal essentially concerned the following six types of information exchange which the Danish Competition Council had concluded were contrary to section 6 of the Danish Competition Act (the equivalent to Article 101 of the Treaty on the Functioning of the European Union (formerly Article 81 of the EC Treaty)):

• DTL's calculation tool for carriers. A calculation tool consisting of a number of cost positions with a default value set by DTL was made available to DTL's members, even though costs are specific for each member. The Tribunal did not consider that it was clear whether the default values – severally – were to be regarded as values that DTL in fact recommended its members to apply, or whether the values were merely in order to provide examples of the calculation tool's technical features. In the absence of further proof, the Tribunal found no basis for concluding that examples inserted in a calculation tool were capable of harmonising prices or otherwise restricting competition. The Tribunal therefore annulled the Council’s decision on this point.
• DTL's price calculation model for lorry driving. DTL made four different price calculation models available to its members in which DTL had already filled out most of the required information, including a default profit of 10% to 15%. The Council concluded that this also had the object of restricting competition as it was likely to result in the co-ordination of the profits of DTL's members and, as a consequence, also their prices.

The Tribunal found that the actual profits in the market differed from the stated default profits to such an extent that there was insufficient basis for the assumption that the examples of profits included in the model were likely to be perceived as recommended profits. There was, therefore, inadequate ground for the assumption that the said practice would result in the co-ordination of the members' profits. The Tribunal therefore annulled the Council's decision on this point.

• DTL's cost index for lorry driving. In this index, DTL had pre-determined values in a number of different areas. According to the Council, this conduct also had as its object the restriction of competition as it was likely to harmonise the members' price structures.

The Tribunal found that the Council’s conclusions were not sufficiently substantiated. The Tribunal therefore annulled the Council’s decision on this point.

• DTL's cost predictions for lorry driving. DTL had also made cost predictions for a wide range of costs, including an expected aggregated annual cost increase for road delivery business in percentage terms. The Council found that this conduct also had the object of restricting competition as it harmonised members' price increases. The Tribunal upheld the Council’s decision on this point.
• DTL's standardised calculation of driving prices. DTL had developed a model for calculating driving prices when the price for diesel oil increased. An additional charge was set when the oil prices increased, but the price remained unchanged when the oil price decreased. The Council concluded that this model had the ability to influence the members' price-setting. It could also result in prices being set at an artificially high level as the model did not calculate a new price when the oil price decreased.

The Tribunal found that the Council's conclusions were not sufficiently substantiated. The Tribunal therefore annulled the Council's decision on this point.

• DTL had called upon its members to pass on oil price and insurance cost increases to customers. DTL had continuously encouraged all members to pass oil price and insurance cost increases onto their customers. The Tribunal found that the passing on of oil prices to customers was an obvious and immediate possibility for the members. The Tribunal concluded that a simple – non-specific – encouragement to pass on oil price increases to customers did not in itself have as its object the restriction of competition contrary to section 6 of the Act. The Tribunal therefore annulled the Council's decision on this point. By contrast, the Tribunal found that the specific encouragement to pass on insurance cost increases in the form of a standardised extra charge of 1.3% was likely to harmonise the members' price-setting. The Tribunal therefore upheld the Council’s decision on this point.

Comment

Over the past years, the Council has decided on a long line of information exchange cases between trade organisations and their members. The Tribunal's ruling is therefore welcomed and the Council has already announced that the Tribunal's ruling will serve as a useful precedent in future cases involving information exchange between trade organisations and their members.

Source: Ruling of the Competition Appeals Tribunal, 30 November 2009