Competition Council’s first best practice recommendations on petitioning (lobbying) activities

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After having admitted as defenses legitimate petitioning activities in two investigations finalized in 2012, the Competition Council announced that it has adopted its first best practice recommendations under Competition Law.

The two cases took place on the market for the distribution of pharmaceutical products and respectively on the private pensions market, and while deciding that no breach of the competition law occurred, the competition authority recommended the companies to pay attention to such discussions in associations of undertakings. These best practice recommendations therefore regard petitioning activities, known in US or at the EU level as „lobbying”. The best practice recommendations are expected to be made available soon on the website of the Competition Council.

The best practice recommendations on petitioning activities set out the Competition Council’s approach with respect to the activities performed jointly by several undertakings or associations of undertakings (such as business associations) in order to defend the interests of the respective undertakings before the public authorities.

General principles:

  • The undertakings’ right to jointly defend their common interest is recognized and permitted, but needs to be exercised in accordance with the competition rules;
  • The collective protest organized by several undertakings against decisions taken by a public authority must fulfill certain conditions: (i) should not affect other undertakings or consumers and (ii) should also be limited and proportionate with the measure leading to the protest and with its consequences on the respective undertakings and the market;
  • The petitioning activity’s compliance with the competition rules is determined based on certain criteria: (i) the aim pursued by the participating undertakings (raising the costs of competitors / consumers or raising / reinforcing barriers to entry purposes is prohibited) and (ii) the commercial information exchanged during the petitioning;
  • The extent to which the action or measure generating the protest may be, prima facie, contrary to article 9 of the Competition Law, which forbids actions by public authorities which limit, impede or distort the competition, such as creating limits to the freedom of trade or discriminating conditions for the undertakings

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