The FCPA Blog has been talking about Collective Action and antitrust concerns.
As Siemens has gained significant experience over recent years in introducing and implementing Collective Action projects in conjunction with other companies, the public sector and NGOs, I thought it would be helpful to share some of our insights into the topic.
Collective Action, which is building alliances against corruption, helps to prevent competition from being distorted and destroyed by corruption, and ensures that companies acting honestly and in compliance with the law are not disadvantaged. The ultimate goal is to establish fair and sustainable market conditions in collaboration with other companies, governments and non-governmental organizations for the benefit of all market participants.
It promotes a level playing field in which, for example, a transparent process based exclusively on the attractiveness of companies’ product or service offerings (such as quality, price, innovation and customer service) ensures that a contract is awarded to the best bidder.
As Collective Action activities include collaboration with other (possibly competing) companies, care must be taken to ensure that such contacts or discussions do not conflict with antitrust rules.
We have therefore, in the context of our Collective Action Program, set out clear guidelines which help to drive collective action globally.
These guidelines set out in detail whether and how discussions with other companies on cooperation regarding anti-corruption initiatives can be conducted and underline that antitrust law requirements must be respected at all times.
Needless to say, any contacts, discussions, etc. between companies in the context of Collective Action activities must never be used to exchange competitively relevant information, or to agree, implement or enforce any kind of anti-competitive agreement, e.g. relating to price fixing, market sharing, bid rigging or collusive tendering. Nor must collective action activities be used by competitors to jointly agree on terms of trade to be used with customers.
Therefore the golden rule of neutral facilitation is of paramount importance:
When organizing Collective Action activities and meeting representatives of other (possibly competing) companies at Collective Action gatherings, the following key points need to be followed:
- All Collective Action meetings/conversations/etc. in which competitors are involved must be organized by, and carried out under the auspices of, neutral facilitators such as NGOs or international organizations; there should be an agenda for any Collective Action meeting, and the discussions should not stray from the agenda without good reason,
- All interested parties should be able to participate freely in the Collective Action activities, both in the deliberations about new Collective Action measures, and in the measures finally agreed,
- Any decision to implement a particular measure should be made in an open and transparent process,
- No competitively relevant information should be discussed; if problematic issues are discussed, leave the meeting immediately and contact Legal and Compliance, and
- Everyone should be particularly careful during the social side of such meetings (meals, hotel bar, etc.).
For Collective Action there is of course no “one size fits all,” but if these key points are accepted and followed by all participants, there should be no antitrust concerns when conducting joint collective action activities — on the contrary, such efforts will help to promote fair competition by leveling the playing field.
See more at: http://www.siemens.com/collective-action
Dr. Klaus Moosmayer is the Chief Compliance Officer of Siemens AG and leads the global Siemens compliance organization. At the end of 2013 he was appointed as Chair of the Anti-Corruption Taskforce of the Business and Industry Advisory Committee to the OECD (BIAC).