PIF Competition Law Guidelines
The Prepaid International Forum (PIF) is a not-for-profit trade association that brings together businesses from the prepaid and fintech sectors to discuss issues of industry-wide importance. As our members may compete directly with each other we must ensure that we fully comply with national and EU competition law and any other equivalent provisions.
Anti-competitive behaviour which may affect trade in the UK is prohibited by Chapter I and Chapter II of the Competition Act 1998. Where anti-competitive behaviour may affect trade between EU Member States, it is prohibited by Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). From 1 January 2021, UK businesses with cross-border activities within the EU will still be subject to EU Competition Law, as well as domestic competition law in EU Member States.
Both UK and EU competition law prohibit all agreements, arrangements and concerted business practices which prevent, restrict or distort competition, or where this is the intended result, and which affect or may affect trade within the UK and EU respectively.
Consequences of breach
If a trade association is used as a means to create or encourage an infringement of competition law, then both the association and its member organisations can face serious consequences, including but not limited to fines, civil liberty damages and in some countries, criminal liability.
Individuals in the UK can face being disqualified from acting as a company directors as well as face prosecution under the criminal cartel offence. Businesses also leave themselves exposed to action for damages from customers and competitors who can show they have been harmed by anti-competitive behaviour.
It is therefore the responsibility of PIF and each PIF Member organisation to ensure compliance with the law. Liability under competition law can be very strict; a trade association member may be liable for infringement by the rest of the association.
The following guidelines apply to PIF, individual PIF Member organisations, and all meetings and events held under the auspices of PIF
In order to avoid any kind of potential violation of competition rules and to ensure the legitimacy and correctness of PIF meetings, these meetings must be accurately and properly recorded.
PIF Members must not discuss or be involved in any of the following activities under any circumstances:
- Price-fixing, including the coordination of price ranges, discounts or any other element of pricing including discussing pricing without actively fixing them
- The exchange of confidential or competitively sensitive information such as business plans, marketing plans and future business plans
- Market partitioning such as the allocation of customer groups or territories between competitors, or bid rigging
- Agreements on investment levels or production quotas
- Joint negotiations, joint selling or (except after legal review) joint buying
- Any agreement restricting competition, such as collective boycott, any arrangement to avoid direct competition, or joint action to exclude competitors or new entrants
To be prohibited by competition law, an agreement need not be written down or binding. The same is true of the decision of an association of undertakings. A verbal information exchange or an informal agreement can be an infringement.
What is competitively sensitive information?
Competitively sensitive information covers any non-public strategic information about a business’s commercial policy. It includes, but is not limited to, future pricing and output plans.
Specific Rules for PIF
There are specific rules for PIF as a trade association. These rules cover our membership rules, the industry-wide standards we may set and information exchanged at our meetings.
We must not use access to PIF membership in order to reserve unfair competitive advantage to our members.
- Our criteria for membership must be concise, objective and reasonably necessary for the purpose and efficient governance of our association. We must apply them in a non-discriminatory manner and never base a decision on the grounds of competition
- Any proposed rejection of a membership application or expulsion of a member should be based on objective criteria
- Membership or access to information must not be conditional upon a promise not to participate in competing trade associations
- Restrictions on members or rules for discipline must be objective and reasonably necessary for the good governance of our association
Industry Standards and Codes of Practice:
PIF may develop and promote industry standards and codes of best practice. These standards are allowed where they aim to improve the quality of our members’ products and services. However, we are not allowed to use them to restrict competition.
- Standards and codes of practice must be related to specified legitimate objectives and no more detailed or restrictive than necessary
- Standards must not be used to raise barriers to market entry or exclude competitors
- Standards should be publicly accessible, including by non-members
- A ‘best practice’ code must not be compulsory and must not limit the way in which participants are able to compete
- Compliance should be voluntary (unless required by law)
- The award of certificates or seals of approval is allowed as long as the criteria is objective and legitimate and applied on a non-discriminatory basis
Members must never exchange competitively sensitive information on their own or their competitors’ commercial strategy or anything that would be considered a business secret. We must take particular care in discussions with fellow members who are or who may become competitors both at formal meetings and at any informal meeting or gathering, even in a social setting where this takes place under the auspices of PIF.
- Benchmarking is allowed, as long as the entity collecting and processing the data is bound by confidentiality and cannot be linked to specific competitors
- Market surveys are allowed as long as the results are presented in a statistical format and that competitively sensitive information remains anonymous
- It is acceptable to discuss generally acknowledged industry trends, regulatory matters of general interest, publicly available information and historical information that have no impact on future business
- Members may discuss or present new or existing products but must not discuss non-public R&D or production plans
What to do if you suspect a breach of these guidelines
Even being present at a meeting where anti-competitive conduct is discussed can be enough to infringe competition rules. Therefore, members should always check the agenda for a PIF meeting, express their explicit objection to impermissible items and not participate in the meeting. As soon as you become aware of an infringement you should contact your company legal counsel, express your disagreement and ensure that a record is kept of your disagreement.
If you miss a meeting, you should review the minutes upon receipt and warn your legal counsel if these suggest an infringement. If you are uncertain whether a particular agreement, discussion or information exchange between competitors is allowed, immediately contact your legal counsel who will take the appropriate steps.
Dos and Don’ts for PIF Members
- Make sure you have read and understood these guidelines
- Inform PIF if you disagree with any of its decisions and keep a copy on file of any such correspondence
- Immediately return any competitively sensitive information you receive, without keeping any copies in any format, and explain in writing why you do not wish to obtain such information
- Inform your company counsel and PIF of any approaches seeking to exchange non-public information or co-ordinate conduct on the market
- Ask PIF to have legal counsel present at PIF meetings if you or company have any doubts
- Reach understandings or agreements or even hold discussions (especially with a competitor) on anything relating to a commercially sensitive topic such as prices, credit terms and billing practices, production, sales, costs, future business plans, bids or matters relating to individual suppliers or customers
- Attend any PIF meeting without a written agenda or a clear indication of the purpose
- Attend any unscheduled gatherings that are held under the auspices of PIF unless you know that they are for a bona fide purpose
- Accept written non-public information or agree to the exchange of oral non-public information with members who market competing products
- Participate in information exchanges, market surveys or benchmarking exercises that allow access to individualised competitive information
- Engage in joint negotiations, joint sales or joint buying without legal advice
- Exclude competitors or engage in collective boycotts
If you have any questions about these guidelines, please contact us at firstname.lastname@example.org
Disclaimer: The information contained in these guidelines are for guidance purposes only and should not be construed as legal or any other professional advice.