Companies have to compete. This is the only way for consumers to obtain quality products at the lowest possible price. It also leads to innovation and improvements on productivity that allow the economy to grow in a sustainable way. To accomplish this, there must be clear rules. Business councils and professional associations, as well as chambers of commerce, often foster the sharing of market information and, therefore, are prone to anticompetitive behavior. The National Antitrust Commission (“La Comisión Nacional de Defensa de la Competencia” or “CNDC”) published a guideline to good practices for these organizations. It’s main objective is to clarify the limit between the right to associate and the duty not to engage in practices that damage competition in the markets.

This guide seeks to prevent cartelization and avoid the joint fixing of prices, the distribution of markets or customers, and the collusion in bids, for which it recommends not to carry out certain activities such as the exchange of sensitive commercial information among the members of the chambers. The following is a quick summary of what and what not to do.

What SHOULD associations and chambers of commerce do?

  • Report business practices adversely affecting market entry, competition, or that abuse a dominant market position prejudicial to general economic interests.
  • Establish compliance programs and promote them among members.
  • Embrace principles of impartiality and non-discrimination with respect to membership requirements.
  • Avoid purchases, sales, collections, and similar activities at the request or on behalf of members.
  • In conducting membership meetings: (i) record all meetings (this will be critical evidence in the event of a charge of unlawful conduct); (ii) take attendance, prepare an agenda specifying topics to be discussed, and note actions or decisions of attendees relevant to the agenda; (iii) leave meetings in which the violation of antitrust rules or regulations is discussed; (iv) obtain advice from professional consultants to assist with identifying sensitive competition areas; and (v) apply these principles and measures  to both in-person and virtual meetings.
  • Regarding the exchange of market information: (i) avoid the exchange of sensitive information, especially if recent or referring to future projections; (ii) only collect historical (at least one year old) information; (iii) do not request information from members frequently, and be sure to always indicate that responding is optional; (iv) distribute information in a general and aggregated way, avoiding any reference to a specific company; (v) allow non-member third parties access to the information.

What MUST associations and chambers of commerce NOT do?

  • Establish rules preventing members from making independent market decisions.
  • Intervene in member negotiations regarding prices or commercial terms.
  • Serve as a medium for the exchange of sensitive information between members.
  • Provide recommendations to members regarding prices, discounts, or similar commercial terms.
  • Agree to, or allow the exchange of, information related to prices, clients, sectors, exclusive markets, or similar commercial terms.
  • Discuss or promote discussion on tenders for bids.
  • Impose standard adhesion contracts or otherwise restrict a member’s freedom of contract.
  • Fix industry standards without a technical basis for the purpose of excluding competitors.

Adherence to these guidelines will prevent business councils, professional associations, and chambers of commerce from purposefully or inadvertently violating antitrust and other laws punishing restraint of trade.  In addition, the guidelines offer the organization and its members a defense in the event of an investigation or enforcement action.  The CNDC guidelines offer an important pathway for organizations and their members that might otherwise be complicit in unlawful conduct.

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For more information on the above or on antitrust matters in general please contact Mariela del Carmen Caparrós ([email protected]) or Gustavo Daniel Rubino ([email protected]).

The foregoing article is based on publicly available information and given for informational purposes only. It is not intended as legal advice or as a comprehensive analysis of the matters referred to herein.