October 5, 2010
We understand from our recent discussions with the Bureau that the Bureau has decided to shelve its proposed Draft Information Bulletin on Trade Associations, issued in draft in 2008 for public consultation.
According to Bureau officials, while the Associations Bulletin was issued in draft form for public comment in 2008, the 2009 amendments to the Competition Act subsequent enforcement guidelines (e.g., the Bureau’s recent Competitor Collaboration Guidelines) made the Bureau conclude that standalone enforcement guidelines for trade associations were no longer necessary.
While the Collaboration Guidelines do indeed cover a number important aspects of association activities that can raise competition law issues (e.g, information exchanges and the potential cartel risks associated with association rules and codes of conduct), a great many association activities are not covered in the Collaboration Guidelines and so either remain unsettled in Canada (or remain to be determined under the amended Act). These include the competition law treatment of standard setting by associations, advertising restrictions, concerted refusals to deal in some instances (e.g., membership refusals or restrictions) and many forms of joint conduct by trade or professional associations, including joint negotiations with buyers/purchasers, which is a common and largely misunderstood area of association activities (not least of which, given that voluntary trade associations do not have collective bargaining authority and so may well be incurring significant competition/antitrust liability by engaging in collective negotiation on behalf of members).
In this regard, a number of leading jurisdictions have issued rather advanced and detailed guidelines for association activities including the recent excellent enforcement guidelines issued by the Irish Competition Authority: Guidance Notice, Activities of Trade Associations and Compliance with Competition Law (November 9, 2009).
New Zealand has also recently issued enforcement guidelines to assist trade associations with their obligations under the Commerce Act (in September, 2010). See: New Zealand Commerce Commission Issues Trade Association Guidelines.
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