Brexit: trade associations and competition law

How to discuss your industry’s reaction to Brexit without falling foul of competition law

Given the economic, political and legal uncertainty following the “Leave”vote, businesses will understandably want to discuss with each other how Brexit will affect their industry and explore how they can help shape the future of the legal and regulatory landscape affecting it.

Such discussions will be valuable and necessary. However, communications between competitors attract suspicion from competition authorities, whowill be concerned to ensure that those discussions do not breach competition law rules.

These guidelines, which apply to all formal and informal discussions, areintended to help businesses keep on the right side of competition law when entering into such discussions.

Legal framework

It is important to remember that agreements and other practices that prevent, restrict or distort competition are prohibited under both UK and EU competition law.

Although the UK’s legal and trading landscape may be changing, businesses must remain compliant with competition law. Breaches can have serious consequences for companies, trade associations and the individuals involved, including large corporate fines, disqualification as a director, imprisonment and personal fines, reputational damage and damages claims.

Permitted discussions

Businesses can discuss the following issues, including in the context of Brexit discussions, but only to the extent that those discussions do not involve pricing or other competitively sensitive information:

  • General market trends and publicly available information;
  • Government or regulatory policy;
  • Joint industry lobbying and promotion initiatives; and/or
  • Other purely technical/non-commercial issues.

It is also possible to collect, share and disseminate certain information, provided that this relates to historical data and is appropriately aggregated and anonymized (discussed further in this note).

If meetings are specifically intended to discuss Brexit and develop a joint lobbying effort, the discussion should be limited to this topic. Only information which is necessary to develop a strategy and a related lobbying position should be disclosed.

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