MacRoberts Competition Law e-update 30/03/10

OFT INTEREST LEADS TO LOAN CHARGES FOR BANKS

The Office of Fair Trading ("OFT") confirmed today that it had fined The Royal Bank of Scotland ("RBS") almost £28.6 million for price fixing.

The case concerned the pricing of loan products to professional firms, such as solicitors and accountants. The OFT found that, during the period from October 2007 to February/March 2008, certain individuals within the RBS Professional Practices Coverage team had been sharing confidential future pricing information with their counterparts at Barclays Bank. The OFT found that Barclays had taken this information into account when determining its own future pricing for such loans.

Barclays blew the whistle on the infringement and, as it was first to confess, received full immunity from fines. RBS's fine was reduced from £33.6 million to reflect its admission of guilt and its cooperation with the authorities.

There are three points which are worthy of particular note:

Firstly, a number of the disclosures had taken place at social, client and industry events. Such events have to be treated with particular caution - the OFT are very wary of competitors getting together in these (or indeed, any) circumstances in case conversation strays into anti competitive waters. This case shows that, in some instances, the OFT's concerns are justified. The fact that the conversation takes place at a social event does not diminish the seriousness of the infringement.

Secondly, even a single meeting between competitors is sufficient to breach the competition rules and where competitors do exchange information, there is a legal presumption that they will take account of this information when operating in the market. Accordingly, very little is required to fall foul of the rules and the onus rests with you to rebut the presumption that the information was so used.

Thirdly, even where the infringement is committed by a small number of individuals (as was the case here), the responsibility for the infringement still rests with the organisation.

The golden rule is that, regardless of the forum, you should not be exchanging commercially sensitive information such as pricing or pricing strategy with your competitors!

MacRoberts has extensive experience in dealing with cartel investigations and leniency applications. Immediate specialist help is imperative when dealing with the OFT to ensure that your interests are fully protected. We also offer full competition law training, compliance and audit services to help you educate your staff and comply with the rules. Compliance training is regarded favourably by the OFT and its cost is significantly less than any potential penalty!

For further information, please contact David Flint or John Reid on 0141 303 1100.

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