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Business Articles Awards > General Antitrust

Price Signalling and Global Antitrust Enforcement: Practical Counselling Tips

Kurt Haegeman and Grant Murray, Baker McKenzie Insight, 01 January 2017

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Companies frequently make public announcements relevant to their business. It is common to publish price lists on websites, announce a proposed price increase or make comments to trade press about how they see their industry developing and their future plans.

In general, public announcements – unlike the private sharing of competitively sensitive information among competitors – will not violate antitrust laws.

However, the recent investigation of liner shipping companies in the EU, and the resulting commitments (which brought the investigation to an end), show that unilateral announcements can in certain circumstances be treated as problematic “price signalling” by antitrust regulators.

The EU is not alone in taking an interest in seemingly unilateral signalling cases. In addition to the EU and the antitrust agencies of many European Member States, agencies in Australia, South Africa, Taiwan and the US have all shown an interest in this type of conduct.

It is, however, striking that, with very few exceptions, agencies have not adopted any “hard” infringement decisions which identify an anticompetitive agreement and impose a fine. Instead, antitrust agencies have resorted to enforcement tools which do not require proof of an agreement and which can bring an investigation to a close with “commitments” (promises to change commercial behaviour) without going as far as to say there was any violation of the law. There are also examples of antitrust agencies imposing outright bans on announcements in certain sectors, such as banking.

Nevertheless, it is clear that signalling is a concern of antitrust agencies globally – and this is unlikely to change in times of political flux where currency fluctuations and other factors can lead suppliers to make public announcements about price increases. In any event, companies will want to avoid lengthy investigations and the sometimes far-reaching restrictions that can be imposed on them in order to bring an investigation to an end quickly.

We consider the various investigations below and then provide some practical tips on how to avoid uninvited attention from antitrust agencies in relation to unilateral price announcements.

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