Fair Trade Law Q&A - Concerted Actions

In light of the increasing need for domestic industries to engage in cross-border business operations in response to globalization, the Fair Trade Commission adopted the "Code of Conduct for Antitrust Compliance of Enterprises" at its 1040th Commissioners' Meeting on October 12, 2011 to help enterprises prevent violations of antitrust laws. The purpose of the Guidelines is to urge enterprises to engage in lawful business conduct, and reduce antitrust compliance risks.

The following are the compliance guidance relating to concerted actions:

1. Before contacting competitors, entering into any arrangement or understanding with competitors, or attending meetings organized by trade associations, enterprises shall request the meeting agenda in advance and consult antitrust counsel regarding any potential competition-law concerns arising from the proposed conduct.
2. If a competitor attempts to discuss sensitive information relating to competition - such as prices, output, capacity utilization rates, trading counterparts, etc. - personnel shall immediately refuse to participate, leave the discussion, and promptly report the matter to supervisors or compliance personnel.
3. Enterprises shall remain highly vigilant regarding letters, emails, text messages, or other communications circulated within the industry. Written records shall be maintained documenting the time, location, and substance of meetings, phone calls and encounters with their competitors and make explicit their standpoint of not to discuss any sensitive information.
4. Information regarding competitors' pricing shall be obtained only from publicly available sources or aggregated historical industry data compiled by trade associations.
5. Enterprises shall be cautious when responding to inquiries from industry analysts or market research firms. Responses relating to future pricing decisions may be viewed as evidence of an unlawful agreement.
6. Personnel shall avoid discussing business-related matters with friends or acquaintances employed by competitors and shall refrain from conducting business communications through personal email accounts or telephones.
7. Enterprises and personnel shall never discuss competition-sensitive information with competitors - whether through email, telephone, text messages, meetings, trade association activities, or social gatherings - including prices (past, present, or future), pricing-related information, transaction terms, production capacities, inventories, trading counterparts, business strategies, or market allocation.
8. Enterprises shall not provide information by making public announcements, press releases or convening meetings in the name of the trade association, or otherwise create opportunities for competitors to exchange competition- sensitive information.

Relevant Provisions: Articles 2, 14, and 15 of the Fair Trade Act