Concerted Practice

A concerted practice is the coordination of competitors’ conduct in the market through direct or indirect contact, without reaching a written or oral agreement. Article 4 of Law No. 4054 prohibits concerted practices together with anti-competitive agreements, preventing competitors from escaping the prohibition by coordinating without a formal agreement.

How It Differs from an Agreement

In an agreement, the parties reach a consensus on certain conduct. In a concerted practice there is no such consensus, but the parties make contact in a way that removes uncertainty about each other’s future conduct and act accordingly. A typical example is competitors notifying each other of future price increases or sharing pricing intentions at an industry meeting; see information exchange.

The Presumption of Concerted Practice

Under the Law, where the existence of an agreement cannot be proven, similarity of price changes, supply and demand balance or the areas of activity of undertakings to those in markets where competition is prevented, distorted or restricted constitutes a presumption that the undertakings are engaged in a concerted practice. The parties may rebut the presumption by proving, on the basis of economic and rational facts, that they did not engage in a concerted practice.

In practice, the Board tends to use the presumption not on its own but together with documents evidencing contact between competitors, such as e-mails, messages and meeting notes.

Parallel Conduct Is Not Always an Infringement

In markets with few large players, companies watching each other’s prices and taking similar decisions may be natural. Parallel conduct that is decided independently and can be explained by economic reasons is not an infringement. It is therefore important to document the reasons for pricing decisions internally and to avoid contact with competitors on prices, costs or strategy.