On 24 February 2023, the Competition Commission (Commission) published final Guidelines on the Exchange of Competitively Sensitive Information between Competitors under the Competition Act 89 of 1998 (Act) (Final Guidelines).
The Final Guidelines are a culmination of many years of work tracing back to 2017 when the Draft Guidelines were published.
The Commission notes that the principles reflected in the Final Guidelines are not to be applied mechanically as factors for evaluating conduct vary from case to case and are dependent on the nature of the information exchanged and market characteristics and dynamics.
The Final Guidelines set out a broad approach, covering all markets and particularly speaks to -
- the legal framework for addressing information exchanges between competitors;
- the harm caused by information exchanges; and
- how information should be exchanged by trade associations and government policy makers.
It is important that businesses take careful note of these Final Guidelines.
Illegal information exchanges can be a rabbit hole which ought to be avoided.
The Guidelines can be downloaded here.
Written by Ahmore Burger-Smidt, Head of Regulatory Practice and Dale Adams, Associate; Werksmans