Antitrust Compliance Guidelines
We appreciate your exchange with our association, specialist associations, working groups and other commitees - in general all the digital and analog communication platforms of the GDA. We attach great importance to keeping to antitrust laws. Therefore, please register the following information.
Antitrust compliance guidelines of the German Aluminium Industry Association (Gesamtverband der Aluminiumindustrie e.V.)
The materials and products of the undertakings in the aluminium industry help to lay the foundations and the infrastructure of modern industrial societies. Being at the start of the value chain, they form the basis for value creation in Germany. The GDA (German Aluminium Industry Association) is the platform for active and varied association activities and represents the common interests of the undertakings in the aluminium industry. The GDA is committed to lawful conduct and its activities strictly comply with German, European and international antitrust law.
The purpose of these guidelines is to ensure compliance with antitrust rules within the GDA. The guidelines cannot replace an examination of antitrust issues in individual cases. They are intended, in particular, to raise awareness of antitrust-related topics among GDA employees and member undertakings, and to define certain practices. With these guidelines we aim to provide certainty and guidance to all members and employees of the association. Any concerns should be addressed to the GDA management, which will initiate an examination and provide clarification where necessary.
The GDA ensures that its member undertakings receive these guidelines and make them available to all employees who are actively involved and participate in the association activities of the GDA.
I. General information on the prohibition on cartels
The activities of the GDA are governed by both German and European antitrust laws. There is practically no difference between these provisions in terms of content. More significant differences only exist with regard to procedural law. Both national and European antitrust laws prohibit any agreements, decisions or concerted practices that are aimed at or result in the prevention, restriction or distortion of competition. This prohibition on cartels is set out in Section 1 of the German Act against Restraints of Competition and Article 101(1) of the Treaty of the Functioning of the European Union as well as in many other legal systems.
The objective of cartel arrangements is mostly to fix prices and/or sales volumes. A cartel does not necessarily require an agreement to exist. The prohibition on cartels also applies to concerted practices, whether written, verbal or implied, if their aim is to restrict competition. Undertakings must not engage in any arrangements or perform any concerted practices that restrict the uncertainty about their competitors’ market behaviour (“hidden competition”). The place where such act is committed is irrelevant. If a cartel has an effect on a national or European market, the relevant antitrust law applies. It is irrelevant whether or not the cartel arrangement is actually implemented or whether the agreed aim is achieved. The arrangement itself to restrict competition is prohibited. The objection that a cartel arrangement did not have a tangible outcome is therefore categorically irrelevant.
An infringement of antitrust law has severe consequences for undertakings, associations and the people involved. According to German law, a fine of up to €1 million may be imposed on individuals. Under German and European law, undertakings may be given fines of up to 10% of their annual group turnover achieved in the previous financial year. Restriction of competition within the scope of a public tender (bid rigging) can also be a criminal offence carrying a penalty of up to 10 years' imprisonment (Sections 298, 263 of the German Criminal Code). Many legal systems (e.g. in the United States and the United Kingdom) generally regard infringements of antitrust law as a criminal offence.
Antitrust cases may also lead to claims for damages by the injured parties and to the exclusion from public tenders and a loss of reputation and confidence for the undertakings responsible and the industry as a whole.
II. Antitrust rules for GDA activities
1. Association meetings
1.1 Topics that may not be discussed at GDA meetings
Competitors are, in principle, allowed to discuss the market situation, especially on the purchasing side, and to exchange general industry information. However, this exchange must not lead to artificial market transparency or have an adverse effect on the “hidden competition” between the undertakings involved. The following – non-exhaustive – list contains topics which must not be addressed or discussed under any circumstances at or in connection with GDA meetings:
- Pricing, future pricing strategies
- Product-related effects of cost increases on pricing at product level (e.g.: agreement on passing on higher costs of raw materials, energy or wages)
- Individual sales and payment terms, discounts, surcharges, bonuses etc.
- Sharing of markets or reference groups
- Individual customer relationships
- Allocation of customers to certain suppliers (e.g. “preferred suppliers”)
- Volume restrictions or allocation of certain delivery quotas
- Boycotts or calls for boycott
- Individual cost items of the undertaking, cost accounting formulas (product-related information on purchasing costs, production, inventories etc.)
- Product-related sales figures, delivery times
Future market behaviour
- Plans for expansion or reduction in capacity that allow conclusions to be drawn at product level
- Plans in connection with research and development, investments, production, marketing or sales
The above topics must not be discussed at GDA meetings. The GDA employees as well as the delegates of the member undertakings will review the meeting agendas and, if in doubt, contact the GDA management. If the above topics are mentioned in off-agenda comments, the process described in “Conducting GDA meetings” will apply.
1.2 Topics that may be discussed at GDA meetings
Undertakings may, in principle, exchange information on topics relevant to them. These include:
- Information on business expectations for the undertaking as a whole or for several business units on an aggregate basis, which does not allow any conclusions to be drawn about the market position of individual products
- General economic data
- Current legislative initiatives and their effects on the member undertakings in general
- General exchange of data which are publicly available
1.3 Preparation of GDA meetings
The GDA sends official meeting invitations to members in a timely manner, by email where appropriate. An agenda will be prepared for each meeting, which must be as detailed as possible. General agenda items should not be used if possible. Ad-hoc topics may be added to the agenda during the meeting and the additional items will be recorded in the minutes. When preparing the agenda, the GDA employees must not include any items that are questionable or misleading from an antitrust point of view. The delegates of the member undertakings must also check the agenda for items that are questionable from an antitrust point of view and, if in doubt, contact the GDA management.
1.4 Conducting GDA meetings
Each GDA meeting must be attended by at least one full-time GDA representative. The GDA representative, in consultation with the chair of the meeting, must ensure that the agenda is followed and prepare the minutes of the meeting. The chair of the meeting and the full-time GDA representative are responsible for making sure that the meeting is conducted in accordance with antitrust rules as set out in the agenda. In addition, all representatives of the member undertakings must ensure compliance with antitrust rules, following the principle “compliance is for everyone”.
The GDA’s “DOs and DON’Ts of antitrust law” provide guidelines on the conduct at meetings and will be made available to the participants.
If a topic is mentioned during a meeting which has (potential) antitrust implications, for example in an off-agenda comment, the topic will be discontinued immediately. In case of doubt, the topic will be deferred and the GDA management will be asked to assess its antitrust implications. The topic will not be discussed until all antitrust implications have been ruled out.
Any changes to the agenda will be recorded in the minutes. Such changes may not include antitrust-related topics. Here, too, the principle applies that, in case of doubt, the topic will first be assessed for its antitrust implications and – if no cause for concern is found – it will be added to the agenda of the next meeting.
The meeting participants undertake to address all antitrust concerns immediately and openly during the meeting. If the objectionable topics continue to be addressed, the meeting will be suspended. If the chair does not suspend the meeting, it is not sufficient to abstain from the arrangements. The law requires participants to distance themselves from any conduct that does not comply with antitrust law. This must be referred to as “standing up and leaving” in the minutes. The objection of the meeting participant and the time when he/she leaves the meeting must therefore be recorded in the minutes.
1.5 Follow-up of GDA meetings
Following each GDA meeting, clear and accurate minutes must be prepared containing the key points and, in particular, any resolutions made. The minutes will be sent to all meeting participants. Once they have received the minutes, the meeting participants will review them to ensure they correctly summarise the key points of the meeting and its resolutions. If the minutes contain any incomplete or incorrect information, the participants will notify the GDA without delay and request that the minutes be corrected.
2. Market information / GDA statistics
The GDA provides its members with a number of statistics. To prepare such statistics, the participating undertakings must report data to the GDA. The GDA treats these data with strict confidentiality and presents them in aggregate form, thereby not allowing conclusions to be drawn about the market behaviour of individual member undertakings. The GDA ensures that its statistics comply with legal requirements. Statistical data may only be reported using the appropriate procedure. Feedback must be provided anonymously. Non-anonymised data will only be published if these are already publicly available or if they allow no conclusions to be drawn about the market behaviour of the undertakings. If such anonymity can no longer be guaranteed, for example due to a change in the structure of the reporting undertakings (e.g. a reduction in the number of reporting undertakings), the GDA will adjust the statistics.
3. GDA communication
The GDA ensures that it uses no wording in its position papers and press releases, whether intentionally or unintentionally, that refers to any arrangements, concerted practices or recommendations of the GDA on anticompetitive behaviour. The GDA must not give any recommendations in relation to the market behaviour of its member undertakings. In particular, the GDA must not advise its member undertakings on how to handle cost increases or pricing policies.
4. GDA norms and standards
The GDA produces norms and standards. The GDA will review the legal framework of its technical recommendations and ensure their compliance with antitrust law. All norms and standards will be produced in an open, transparent and non-discriminating procedure.
5. GDA membership
The GDA has set out its requirements for membership in its articles of association. Undertakings that fulfil the requirements for membership set out in the articles of association will be accepted as members. Any exceptions to the provisions of the articles of association will be handled by the GDA without any discrimination.
Any questions on this code of conduct or other antitrust issues should be addressed to the GDA management. All member undertakings are asked to discuss antitrust-related issues openly with the GDA management and seek clarification.