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Concerted practices and Exchange of information: An overview of EU and national case law

José Rivas, Geoffroy Van De Walle De Ghelcke, 9 March 2012, e-Competitions, N°43913.

See José Rivas's resume See Geoffroy Van De Walle De Ghelcke's resume

It could be said that exchange of information is one of the few areas in which the decisional practice of certain National Competition Authorities ("NCAs") is more developed than that of the European Commission (the "Commission"). Partly to fill that void and to ensure that the decisional practice of the NCAs remains consistent from one Member State to another, the Commission included a chapter on exchange of information in its horizontal cooperation guidelines [1] (the “Horizontal Guidelines”).

This phenomenon could be seen as an early manifestation of an ongoing "Copernican revolution" in which antitrust enforcement will gradually be led by NCAs rather than the Commission and in which the latter will take on a role as a coordinator rather than as a pioneer.

However, just how consistent is the approach of the NCAs in the field of concerted practices and information exchanges with one another and with that of the Commission? This foreword does not aim to analyse all national cases relating to concerted practices and exchanges of information. Instead we chose a number of interesting cases which illustrate difficult questions such as the definition and burden of proof for concerted practices, the existence of restrictions by object, the particular issue of exchanging publicly available information and the civil law consequences of concerted practices.

1. What is a Concerted Practice?

The first substantive analysis of the concept of concerted practice by the Court of Justice (the ’CJ’) was in Dyestuffs [2], in which the CJ held that concerted practices are "a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition" [3].

The CJ recognized that undertakings are free to adapt themselves intelligently to market conditions [4] but highlighted that the provisions of the Treaty on competition, according to which each company must independently determine its conduct on the market, precludes any "direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market" [5].

In Hüls, the CJ clarified that the concept of a concerted practice "implies, besides undertakings’ concerting with each other, subsequent conduct on the market, and a relationship of cause and effect between the two" [6]. The CJ went on to decide that it can be presumed that the companies taking part in the concertation, and which remain active on the market, take into account the information exchanged with their competitors to determine their conduct on the market.

The above definitions are positive definitions, i.e. they contain requirements necessary to determine that certain behaviour is a concerted practice. However, case-law also often uses a ’catch-all’ or ’negative’ definition, under which the notion of concerted practice encompasses every kind of (anticompetitive) concertation: "the definitions of ’agreement’, ’decisions by associations of undertakings’ and ’concerted practice’ are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves" [7].

In practice, this means that in situations where the contact (e.g. the exchange of information) is clear or not contested, Courts do not consider it necessary to identify whether a particular behaviour falls within one of the three categories considered in Article 101(1) TFEU. In Asnef-Equifax, the CJ even considered that "a precise characterisation of the nature of the cooperation at issue is not liable to alter the legal analysis to be carried out under Article [101 TFEU]" [8].

1.1. Required evidence and burden of proof

1.1.1. Parallel conduct as proof of a concerted practice

The definition of a concerted practice requires "direct or indirect contact" or at least "collusion". Evidence of such contacts may be readily available because they are not secret or are documented and the competition authority has had access to such documents (e.g. via dawn raids or leniency applications), but in many cases parties have been very careful not to document the contacts (e.g. all contacts happened over the phone) or to destroy the documents.

In those cases where competition authorities lack direct evidence of contacts between companies, they may rely on circumstantial evidence [9], such as proof of parallel behaviour. This however poses important questions as it creates a risk that competition authorities wrongly assume that companies have concerted where, in fact, each of them unilaterally adapted to market conditions.

As the Advocate-General stated in T-Mobile [10]: "Admittedly, not all parallel conduct of competitors on the market can be traced to the fact that competitors have adopted a concerted action with an anti-competitive object. The general market situation may also result in all undertakings operating on a market making similar modifications to their market conduct". The jurisprudence of the CJ has provided examples which involved alternative explanations for parallel behaviour other than concertation. For example, in Tournier [11] and Lucazeau [12] the Court stated: "…mere parallel behaviour may amount to strong evidence of a concerted practice (…). However, concerted action of that kind cannot be presumed where the parallel behaviour can be accounted for by reasons other than the existence of concerted action. Such a reason might be that the copyright-management societies of other Member States would be obliged, in the event of direct access to their repertoires, to organize their own management and monitoring system in another country".

Another example was provided by the Court in Woodpulp II [13]: "in this case, concertation is not the only plausible explanation for the parallel conduct. To begin with, the system of price announcements may be regarded as constituting a rational response (…). Further, the similarity in the dates of price announcements may be regarded as a direct result of the high degree of market transparency(…). Finally, the parallelism of prices and the price trends may be satisfactorily explained by the oligopolistic tendencies of the market (…). Accordingly, the parallel conduct established by the Commission does not constitute evidence of concertation".

A decision of the Spanish Competition Authority (the "CNC") in 2006 provides an illustration of the use of such circumstantial evidence. It observed that the five major distributors of Hollywood films imposed very similar conditions in their contracts with cinemas. For example, all five distributors charged 60% of turnover for a blockbuster during the first week of its release, with the percentage decreasing over time in the same proportion. The CNC concluded, referring to Dyestuffs, that the only possible explanation for this parallelism was collusion between the distributors [14].

In the Czech Republic, three bakeries each announced price increases to their customers (supermarkets) on the same day, via letters with identical wording. After a long judicial saga, the Regional Court in Brno confirmed the competition authority’s finding that this behaviour amounted to a concerted practice. The Court acknowledged that there were certain elements which would have led to price increases, but this could not explain why the bakeries announced the price increases on the same day using identical letters [15].

1.1.2. Presumption that the information has been taken into account

If there is proof of concertation, typically in the form of exchange of information, the competition authority can "sit back and relax" because it is for the defendant companies to show that they did not take such information into account when determining their market conduct [16].

As with any negative proof, bringing evidence that one did not take information into account is, unsurprisingly, very difficult. For example, the English Competition Appeal Tribunal’s statement that "the recipient of the information in question cannot normally fail to take that information into account when formulating its policy on the market" [17] leaves little scope for a successful rebuttal of the presumption. In fact, it would appear that the only way to reverse the burden of proof is by showing that the participant expressly opposed receiving the information at issue for example, by leaving the meeting as soon as the anticompetitive nature of the information became apparent and by publicly distancing itself from the exchange of information [18].

With this is mind, the Dutch Trade and Industry Appeals Tribunal [19] ruled that, taking into account the requirements of Article 6 ECHR (notably the presumption of innocence) and the ECHR judgment in Salabiaku [20], the defendants should not be required to provide irrefutable proof that they did not take into account the information. Instead, they were only required to bring as much evidence as was necessary to weaken the presumption of a causal connection. Following this judgment, the NMa adopted a new decision which confirmed that the exchange of information was illegal but with substantially reduced fines [21].

1.2. Is every exchange of information necessarily a concerted practice?

In its Horizontal Guidelines [22] the Commission emphasises that the qualification of an information exchange as an agreement, a concerted practice or a decision by an association remains the necessary first step in the analysis, without prejudging the existence of a restriction of competition.

We submit that, as far as concerted practices are concerned, the Commission’s view is unnecessarily formalistic. Indeed, how could a competition authority decide that an exchange of information is a concerted practice (which implies that the parties "knowingly substituted practical cooperation between them for the risks of competition") without prejudging whether or not their behaviour was liable to restrict competition? In other words, the analysis of whether a particular exchange of information amounts to a concerted practice already contains the analysis of whether that concertation is liable to restrict competition. If the exchange of information has no anticompetitive object or effect, it is simply not a concerted practice.

This can be applied to the facts in Asnef-Equifax. In that case, the CJ did not consider it necessary to qualify the exchange of information as one of the three categories of Article 101 TFEU and immediately delved into the analysis of the existence of a restriction of competition [23]. After carrying out the analysis, the CJ concluded that there was no restriction of competition because it considered that the exchange of information system was not "liable to reduce uncertainty as to the risks of competition" and that "each operator could be expected to act independently and autonomously when adopting a given course of conduct" [24]. This can only mean that there was no concerted practice in the first place [25].

This issue was also central in T-Mobile. The parties considered that, since there had only been a single instance of exchange of information, this was not sufficient to presume that the parties had based their market conduct on that information [26]. The CJ ruled that it must be assessed whether the exchange of information allowed the parties to ‘successfully concert’ and that this depends on the subject matter of the exchange of information and the particular market conditions [27] rather than on the number, frequency or form of the exchange of information.

The CJ went on to consider that, in that particular case, the single meeting constituted "a sufficient basis on which to implement the anticompetitive object which the participating undertakings aim to achieve". Again, the CJ had already decided that the behaviour amounted to a restriction of competition (by object) so that the NMa could validly presume that the companies had taken into account the information.

2. Selection of national cases

2.1. Object cases

Some exchanges of information are clearly anticompetitive, as their only credible objective is to restrict competition. In its Horizontal Guidelines, the Commission considers that such exchanges can be fined as cartels [28].

The fine imposed by the OFT in March 2010 certainly resembles a cartel case. It imposed a £28.5 million fine on the Royal Bank of Scotland ("RBS") for having unilaterally disclosed generic and specific confidential future pricing information to Barclays [29]. The case was initiated on an application for leniency by Barclays which was granted immunity from fines. The OFT found that the information provided by RBS related to the pricing of loan products to large professional service firms, a market on which RBS and Barclays are the two main providers. The OFT further found that Barclays had altered its pricing strategy in light of RBS’ disclosure.

This large fine contrasts with the structured settlement that the OFT reached with 50 independent schools in December 2006 [30]. The schools regularly exchanged future proposed fee levels and proposed fee increases through the so-called "Sevenoaks Survey", prepared by one of the participants. Despite this being a clear restriction of competition, which according to the Horizontal Guidelines can be fined as a cartel, the OFT decided to reach a structured settlement whereby the schools would be subject to limited financial penalties (the highest being £10,000). In addition, the schools agreed to contribute to an independently monitored educational trust for the benefit of students who may have been affected by the anticompetitive behaviour.

In this case, the OFT recognised that imposing large fines on (not-for profit) entities may be counter productive as it could lead to higher tuition fees or reduced services.

In Spain, the CNC imposed a fine of EUR 900,000 on the Spanish Perfumery and Cosmetics association (STANPA) for having implemented a regular exchange of information in which actual and future prices and volumes were exchanged [31]. Shortly afterwards the CNC imposed a total of EUR 58 million in fines on certain members of STANPA [32] who had exchanged, among other information, future price increases, the date of the price increases, applicable discounts, etc. over a period of fourteen years. Interestingly, although the CNC did not allege that there was any price fixing, the case was expressly identified as a cartel.

The Lisbon Breadmakers’ Association requested that its members provide it with consumer bread prices in order to monitor said prices and to provide guidelines for the sale of consumer bread. The Portuguese Competition Authority (the "PCA") found that the exchange had the object of restricting competition. In addition, the PCA observed that during the time when the price information was being provided to the Association, the members varied their prices in a uniform way. The decision was upheld on appeal [33].

The Lithuanian Competition Authority ("LCA") has adopted an infringement decision against seven dairies for having exchanged information on past, but recent, procurement and sales volume. The LCA considered that the exchange of that confidential information in such an oligopolistic market restricted competition and that in view of the "character of the restriction, its effects could be presumed", thereby suggesting that the exchange was a restriction by object. The Supreme Court disagreed [34]. Applying T-Mobile to these facts, it underlined that an exchange of information has an anticompetitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings. It considered that the LCA had failed to show that the exchange of information was capable of removing such uncertainties and had merely expressed suppositions that the dairies lost their independence of decision making. Consequently, the Supreme Court sent the case back for reinvestigation.

2.2. Obtaining information through market research companies and IT services: when is information genuinely public?

Market data provided by third parties is generally not seen as anticompetitive. The European Commission considered that such surveys are an instance of provision of a service by a third party and not an agreement between competitors [35]. However, the information provided by such service providers can be so detailed that they may, in practice, have the same chilling effect on competition as a direct exchange of information or be used as a monitoring mechanism in the context of a cartel. At the same time, these information sources provide useful information for both new entrants and customers.

The Finnish Competition Authority (the "FCA") carried out an investigation on the information provided by AC Nielsen’s ScanTrack service to the three leading Finnish retailers [36]. ScanTrack collected information at the retailers’ point of sale and disseminated detailed sales figures consisting of the value and volume of sales, consumer price and market share, segmented by product group, segment, producer, brand and product name on a national and regional level. The information was between one and five weeks old. Crucially, it was provided on a reciprocal basis only, i.e. only to the retailers which provided their own information to AC Nielsen.

The FCA concluded that the information enabled the monitoring of a single competitor’s behaviour on the market and therefore may have lead to the coordination of the retailers’ strategy. It did not however request the imposition of fines since the parties had ceased receiving the information during the investigation.

The Italian Competition Authority (the "AGCM") objected to a database set up by an independent consultant, IAMA, which collated and disseminated detailed information on life assurance and pension insurance products. This case is particularly interesting because the disseminated information was public in that it was disclosed to customers (as required by Italian regulation) and often available on the web. According to the AGCM, the fact that the information was public did not mean that its exchange through IAMA was shielded from competition law because it was not public domain information. This was because the information was provided directly by the participants to IAMA, making it more trustworthy than information collected on the web and because the AGCM considered that each insurance company did not have the resources to implement a similar database without collaboration from its competitors.

The AGCM found that the information exchange amounted to a concerted practice which, even though it recognised that the market was not concentrated, restricted competition by object. Therefore, it was not necessary to analyse the effects.

The Tribunale Amministrativo Regionale de Lazio (the "TAR") annulled the AGCM’s decision, stating that the exchange of information available on the market cannot restrict competition per se and that the AGCM’s distinction between public information and public domain information is unsatisfactory given that information that is "immediately accessible by anyone without incurring significant costs" does not exist in practice. The TAR did not exclude that the exchange of non-sensitive information could restrict competition, but in such a case it requires the AGCM to provide evidence of tangible effects on competition [37]. The TAR’s ruling was reversed by the Consiglio di Stato, which considered that the exchange of information which is publicly available but not "genuinely public" must be presumed to facilitate collusion and to amount to a restriction of competition by object [38].

The Consiglio di Stato’s judgment is at odds with the Horizontal Guidelines. While the Horizontal Guidelines identify a similar difference between information that is in the public domain and information that is genuinely public, they do not automatically consider that the exchange of data which is not genuinely public is a restriction by object. Instead one must analyse the type of data that is exchanged and assess whether that information removes uncertainties as to the potential behaviour of the competitors.

In the UK, the OFT is currently consulting on commitments to modify the way information exchange occurs through a third party IT software provider’s tool, Experian’s WhatIf? [39]. The exchange worked as follows: insurers would provide their pricing information on a monthly basis to an IT software provider, which then made it available six weeks before implementation to brokers. In that sense the information contains future data. The brokers could then use this information to calculate quotes and sell insurance products. The IT software provider also provided the data to Experian which incorporated that data into a broker channel market data analysis product, Whatif?. Given that the insurers themselves were active in the broker channel, they were also able to use Whatif?.

The OFT concluded that the insurers were therefore able to obtain commercially sensitive, non public, individualised, highly disaggregated and future information on a regular and frequent basis. Consequently the OFT considered the system to be a restriction by object.

Rather than completely banning the system and fining the participants, the OFT is considering accepting commitments that would remove the restriction of competition while safeguarding the pro-competitive effects of the exchange. Indeed, the OFT considers that the information helps small players and new entrants to compete in the market. The commitments provide that:

- Future prices cannot be communicated to Experian to the extent that other insurers could have access to it;

- Current pricing can only be made available through Experian if it is anonymised and averaged over at least five insurers; and

- Past prices can be exchanged on an individual and disaggregated basis as long as the data is more than six months old. [40]

3. Civil law consequences

Another interesting question concerns the civil law consequences of the finding of an illegal concerted practice. While Article 101(2) TFEU declares that agreements (and decisions by associations of undertakings) which contravene Article 101(1) TFEU are null and void, it is silent on the fate of concerted practices.

At EU level a recent precedent is Artisjus, an order of the President of the General Court following the Commission’s CISAC decision [41]. The Commission decision declared that the coordination of territorial limitations between collecting societies was an illegal concerted practice. At the same time, it required the collecting societies to review bilaterally the territorial extent of their reciprocal representation agreements. The applicant, the Hungarian collecting society, argued that the Commission decision created legal uncertainty as it was unclear whether the territorial clauses in the agreements were null and void, or whether they should be extended following bilateral review.

The President ruled firstly that the nullity of Article 101(2) TFEU does not apply to prohibited concerted practices [42]. Further, it emphasised that the Commission had not declared that the reciprocal agreements themselves were illegal. Therefore the agreements were not void by virtue of the Commission’s finding. Finally, the President expressly stated that [43]: "the unlawfulness of the concerted practice referred to in the contested decision cannot therefore make void the alleged result of that practice, namely the reciprocal representation agreement".

The Swedish Supreme Court took a similar approach. An industrial buyer of electricity argued that the price adjustment clauses contained in its electricity supply contract were null and void since those clauses had been inserted as a result of, or as part of, a prohibited coordination (i.e. a concerted practice). The Supreme Court rejected that conclusion: it considered that the concerted practice itself (the concertation) was not a binding agreement or decision between the parties, so it could not be subject to nullity. Hence, since the cooperation did not take the form of a binding agreement or a decision of an association (i.e. it is a concerted practice), its legal effects could not be subject to nullity under competition law [44].

However, a different solution was adopted in the Netherlands [45]. It had been established that parties had reached an illegal concerted practice consisting in the termination of certain contracts. One of the victims of the terminations then argued that the termination was null and void as it was the consequence of a concerted practice.

The Advocate General to the Hoge Raad argued that the termination of the contracts could not be null and void under competition law (i.e. Article 101(2) TFEU and its Dutch equivalent) as concerted practices are excluded from those provisions. Furthermore, he considered that concerted practices, unlike agreements or decisions, are not binding legal acts, so they cannot lose their binding power. This being said, the Advocate General noted that the termination of the contracts could be annulled on the basis of national civil law grounds [46].

Contrary to the Opinion of its Advocate General, the Hoge Raad took the view that there is no reason to exclude a unilateral legal act, such as the termination of the contract, from the nullity provision of the Dutch equivalent of Article 101(2) TFEU if it follows from, forms a part of or is sufficiently linked to a concerted practice that is prohibited by the Dutch equivalent of Article 101(1) TFEU. In effect, the Hoge Raad therefore not only considered that a concerted practice falls within the nullity provision of Article 101(2) TFEU and the national equivalent, but also that the consequential agreements, to the extent they are sufficiently linked to the concerted practice, are also null and void.

The above issue of nullity of concerted practices should be distinguished from the nullity of anticompetitive agreements and the consequential agreements which stem from them. While it is clear that anticompetitive agreements are null and void under competition law, the fate of consequential agreements is less certain.

In Germany, consequential agreements (’Folgeverträge’) concluded between the parties to an anticompetitive agreement and their clients or suppliers remain unaffected by the nullity of the anticompetitive agreement. This doctrine has been adopted by a Hungarian Court of Appeal in December 2010 [47]. Following a horizontal cartel agreement on bid rigging in the construction sector, the motorway agency argued that its contract with one of the participants in the cartel was null and void due to the underlying cartel. The Metropolitan Court, in first instance, ruled in favour of the motorway agency on this point. However, the Court of Appeal reversed that judgment. It considered that the aim of the competition law provisions is to ensure that anticompetitive agreements could not be enforced. Consequential agreements, however, remain unaffected by those provisions. The Hungarian Court of Appeal was quick to add, in an obiter dictum, that the correct remedy for this type of issue is compensation for damages rather than an action for nullity.

4. Conclusion

This foreword has tried to highlight some of the interesting national decisions in the field of concerted practices and exchange of information. While the law and practice in relation to concerted practices and exchanges of information are clearly converging across NCAs, some significant differences continue to exist. The Commission’s Horizontal Guidelines, which now contain a chapter on exchange of information, will provide a useful reference point for NCAs to ensure consistency.

The area of nullity of concerted practices is one in which an important divergence between Member States continues to exist. Given that nullity, outside of Article 101(2) TFEU, is still a question for national civil law, it is doubtful that the principles will converge across Member States.

Footnotes

[1See Commission Communication - Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements Text with EEA relevance; (OJ C 11, 14.1.2011, p. 1-72).

[2ECJ, July 14th, 1972, ICI v. Commission, Case 48/69, [1972] ECR 619.

[3Ibid. para 64.

[4ECJ, December 16th, 1975, Suiker Unie a. o. v. Commission, Joined Cases 40/73, 41/73, 42/73, 43/73, 44/73, 45/73, 46/73, 47/73, 48/73, 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73, [1975] ECR 1663, para. 174.

[5Ibid.

[6ECJ, July 8th, 1999, Hüls AG v. Commission, Case C-199/92 P, [1999] ECR I-4287, (“Hüls”) para 161 ; see also C-8/08, T-Mobile Netherlands and others ECR 2009 p. I-4529, (“T-Mobile”) para. 51.

[7T-Mobile, para. 23, ECJ, July 8th, 1999, Commission / Anic Partecipazioni, Case C-49/92 P, [1999] ECR I-4125 (“Anic”) para. 112 and 131, ECJ, November 23th, 2006, Asnef-Equifax, Case C-238/05, [2006] ECR I-11125 ("Asnef-Equifax") para. 32, ICI para. 64.

[8Asnef-Equifax, para. 32, see also Anic, para. 133.

[9See for example, the Commission’s statement in LdPE (OJ 1989 L74/21 §28) that "it is inherent that any decision will to a large extent have to be based upon circumstantial evidence; the existence of the facts constituting the infringement (…) may have to be proved by logical deduction from other proven facts".

[10T-Mobile, para. 66.

[11ECJ, July 13th, 1989, Tournier, Case 395/87, [1989] ECR 2521, para. 24.

[12ECJ, July 13th, 1989, Lucazeau a. o., Joined Cases 110/88 110/88, 241/88 and 242/88, [1989] ECR 2811, para.18.

[13ECJ, March 31th, 1993, Ahlström Osakeyhtiö, United Paper Mill, Kaukas Oy a. o. v. Commission, Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85, 125/85, 126/85, 127/85, 128/85 and 129/85, [1993] ECR I-1307, para. 126.

[16Hüls, para. 162.

[17Argos Limited and Littlewoods Limited v OFT [2004] CAT 24, at § 663.

[18CFI, March 20th, 2002, HFB a. o. v. Commission, Case T-9/99, [2002] ECR II-1487, para. 223; CFI, April 6th, 1995, Tréfileurope Sales SARL v. Commission, Case T-141/89, [1995] ECR II-791, para. 85.

[20ECHR, 7 October 1988, Application No 10519/83, No 141-A.

[22Horizontal Guidelines, para. 60.

[23The Court took a detour via the existence of an effect on trade between member states, but this is not material to this Foreword.

[24Asnef-Equifax, para 62.

[25This does not exclude that the behaviour could qualify as an agreement or a decision by an association.

[26T-Mobile, para. 55.

[27T-Mobile, para. 60.

[28Horizontal Guidelines, para.74.

[31Spanish Competition Authority (CNC), 7 February 2011, Case number S/0155/09.

[32Spanish Competition Authority (CNC), 2 March 2011, Case number S/0086/08.

[35Wirtschaftsvereinigung Stahl [1998] OJ L1/10, §58.

[40In the original commitments, a longer period of 36 months was proposed. However, the period was shortened to 6 months in order to safeguard efficiencies for new entrants and small players.

[41CFI, November 14th, 2008, Artisjus v. Commission, Case T-411/08 R, [2008] ECR Pub somm (Artisjus), confirmed on appeal by the President of the Court of Justice in Case C-32/09 P(R) Artisjus v Commission, not yet published.

[42Ibid. para. 46.

[43Artisjus para. 47.

[45Hoge Raad, case 10/00372, LJN: BQ2213.

[46Such as standards of reasonableness and fairness or article 3:40 of the Dutch civil code.

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