March 30, 2014
Canada’s Competition Bureau has issued a number of new anti-cartel (Competition Act conspiracy) compliance materials, including an updated version of its Bid-Rigging Pamphlet and two new pamphlets: a Competitor Collaboration Pamphlet (a more comprehensive set of Bureau enforcement guidelines on this topic already exists) and an entirely new Trade Associations Pamphlet.
The Bureau had been planning to issue a standalone Bulletin on associations several years ago, but has evidently opted to rely on the association related discussion in its Competitor Collaboration Guidelines and this newly issued short pamphlet. The Bureau has also issued a new video on competition law compliance.
These new resources were issued by the Bureau in connection with its first “Annual Anti-Cartel Day” and part of its annual Fraud Prevention Month activities more generally. In making today’s announcement, the Bureau said:
“John Pecman, Commissioner of Competition, today announced the Competition Bureau’s first annual Anti-cartel Day, launched as part of the 2014 Fraud Prevention Month campaign. This new initiative is designed to help raise awareness of the negative consequences that cartels have on everyone, and how cartels can be prevented. As part of this initiative, the Bureau wants to help businesses understand how developing a good corporate compliance program can enhance a company’s competitiveness. A competitive marketplace is good for business, good for consumers and good for the economy. The Bureau has prepared helpful materials to assist businesses and trade associations in recognizing and preventing cartel activity and other anti-competitive conduct, and to encourage companies to establish compliance programs within their organizations.”
In general, today’s development shows that the detection and enforcement of criminal cartels and other criminal conduct under the Competition Act, such as bid-rigging and deceptive marketing, continues to remain an enforcement priority for the Bureau. The announcement also continues to signal the Bureau’s renewed interest over the past several years in trade and professional associations, including reminders of the importance of effective competition law compliance for associations.
A few more specific points that caught my eye on my first pass through the Bureau’s new competition law compliance resources include:
1. Competition Compliance Programs – A continued recommendation that companies and associations adopt effective competition law compliance programs.
2. Whistleblower Initiative – Continuing to highlight, in addition to the Bureau’s Immunity and Leniency Programs, its recently launched “Whistleblower Initiative” (for more on this relatively new Bureau initiative see: here and here).
3. Association Compliance – Detailed but practical do’s and don’ts for associations to comply with competition law (see: here). These do’s and don’ts, which reflect many compliance programs that counsel routinely prepare for associations, include guidelines relating to: adopting a compliance program; “information exchanges” (i.e., the collection and exchange of competitively sensitive information through associations); association meetings; fee guidelines; standard setting; codes of conduct; association initiatives that may exclude or adversely impact some competitors; and misleading advertising. For some of my earlier posts on the Bureau’s stepped up interest in associations and compliance best practices for associations see: here, here and here.
4. Bid-Rigging Detection and Deterrence – A reminder, in the Bureau’s updated Bid-Rigging Pamphlet, of some of the ways to detect and deter bid-rigging (see: here). As with some other international enforcement agencies (notably in the United States and South Africa in relation to foreclosure auctions, auto parts and construction), bid-rigging also continues to be an enforcement priority for the Bureau. For some recent Canadian bid-rigging related developments, see: here, here and here.
The Bureau’s new Competitor Collaboration Pamphlet provides a good overview of the basic elements of the criminal conspiracy and civil agreements provisions of the Competition Act under sections 45 and 90.1 (though the Bureau’s Competitor Collaboration Guidelines remains its primary and more comprehensive discussion of competition law issues that can arise in the context of competitor-competitor collaborations).
For more about Canadian competition law compliance and compliance programs see: here.
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I am a Toronto competition and advertising lawyer offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
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