Dear User, once you have passed through all the questions that the Tool had asked you, you have supplied the data needed – some of them derived from your experience, some of them from Statistics and other more or less objective sources. The Tool has combined the pieces of information you had supplied and now you have its opinion – what is the chance that there is a cartel structure functioning in the investigated market segment? Please, do not forget that it is just a tool, it works relying heavily on you – if your data are reliable it will provide a reliable result.
We are far from pretending that TECoL is a perfect instrument for detecting cartels. There is no such thing in the world of science nor in the practice of different state authorities. TECoL is the possible weapon (to the best of our knowledge for the time being the only possible weapon) that YOU can use to combine different aspects of your insights with more or less objective data for assessing the chances that your market can be cartel “contaminated”. At certain points it has its drawbacks, for sure there will be others that we are not yet aware of. Like every tool it has its range of operation. The most important part is how one works with it.
Now you have your result in your hands. Yes, it is YOUR result and it is YOU that will decide what to do with it.
- First of all, did it respond to your expectations? Did it confirm your notions? Are you ready to accept the assessment of the Tool or something important escaped its attention, fell out of its reach?
If, somehow, you don’t feel satisfied you have several options:
- You can repeat the TECoL Process looking for a way to fill the underestimated information in its questionnaire. We would advise that you use mainly the comment options accompanying every question.
- You can have and use the assessment provided by the machine but whenever you are going to use it you can apply your version, explanation, arguments. Even if you don’t agree with the conclusions of the machine they can serve as a very handy basis for your further comments.
- You can drop the case feeling that you did what you had to do but the TECoL Process did not support your insights. And then you can:
- Expect some other Tool to appear that will serve you better. Now, at least, you know what kind of improvements you are waiting for.
- Proceed with your activities ignoring TECoL and addressing to one or another of the cells in the anti-cartel network. Supplying you with a map featuring what they are and how you can contact them we would help you even if you don’t find TECoL satisfactory according to your understanding.
- Postpone the case waiting for other information regarding cartel activity to appear. Dealing with TECoL you haven’t lost your time. Now, at least, you are much more familiar with the types of information that can serve the cartel favourability.
- Drop the case for good. If it comes to that you have wasted some time and efforts but you have saved much more time and efforts trying to resolve a problem that does not exist or its resolution is out of your reach.
- Maybe the result is acceptable to you. Then:
- If it is negative – showing that there is a little chance that the deviations of “your” market are due to a cartel functioning there, you can:
- Look for other explanation of the deviations.
- Cancel your further activities regarding the abnormalities of the investigated market.
- If it is positive you can choose among several options:
- The Consumer Organizations (CO).
- If it is negative – showing that there is a little chance that the deviations of “your” market are due to a cartel functioning there, you can:
Consumer Organizations are one of the most obvious entities to be addressed to because:
184.108.40.206 At the end of the day it is the consumer that is the final target of the cartel. The price, the quality, the variety, the innovations of the products – all these characteristics of the consumer’s side of the market are strongly affected by the cartels. It is not a coincidence that the practice of the state authorities is often connected with the field of competition and consumers.
220.127.116.11 The listed in the Annex Consumer Organizations have been familiarized with the existence of TECoL, have been consulted about it, their opinion has been requested, etc.
18.104.22.168 So, it is difficult to believe that your signal, supported by the TECoL confirmation, will be neglected.
22.214.171.124 In the Annex you will find the contact names and addresses of the official, state supported Consumer Organizations at national level. It is very possible that there are also regional and local branches of the official CO and a variety of NGO (non-governmental organizations) and other informal Consumer Unions. The best source for their addresses (apart from your experience) will be the official National Consumer Organization.
2.2.2 What the Consumer Organization can do responding to your signal?
126.96.36.199 Contact you for some more details, ask you to confirm some of the data you supplied to the tool or assess your experience as to the reliability of your information. This is a positive reaction, please, do not underestimate it. In fact, this is the beginning of a serious public action.
188.8.131.52 On the basis of this interview the CO may decide to pass the procedure together with you adding (or changing) some information supplied to the tool.
184.108.40.206 The CO may decide to pass through the TECoL Process on its own relying on its own sources of data, its experience in dealing with institution, its better chances to get access to statistical data, etc. We consider this as the best combination for a successful accomplishment of the TECoL Process – the individual with his/her serious interest and pointed information regarding the market segment plus the organization with its higher level of experience, information, access, public image.
220.127.116.11 It can decide to pass the case to its “mother” organization – the National CO, the formal CO, etc.
18.104.22.168 It can decide to signal to some of the levels of the antitrust state authorities.
22.214.171.124 It can address to some of the big players on the market/industry:
a/ ask for their point of view;
b/ ask for an explanation;
c/ make a statement regarding the competition in the market.
126.96.36.199 Start some form of public action including addressing to the press.
188.8.131.52 Not react to your signal. Do not give up.
a/ maybe your signal didn’t reach the CO. Try again, ask for confirmation of receiving, etc;
b/ maybe your signal went in the wrong drawer. Contact the CO, ask why you were not answered, etc;
c/ maybe the respective board or the appointed person need some time to assess your signal and decide what to do. Contact the CO;
d/ maybe, the respective CO personnel prefers to abstain from any reaction for reasons that do not sound well-founded to you. Contact them, ask if this is the case and then address to another organization.
- Trade Associations.
Trade Associations (TA) are an important part of the TECoL aftermath because:
a/ in the literature concerning Competitive Markets Trade Associations are often treated as a structure eventually favouring collusion;
b/ it is the Consumer that is in the focus of anti-cartel interest and this is underlined in several Office of Fair Trade papers.
Working on TECoL we have come to the conclusion that an individual should be highly motivated and to have at his/her disposal certain resources – time, expertise, money in order to accomplish successfully the process. That is why the most probable TECoL User is the small or medium enterprise owner strongly affected by a possible cartel structure.
A list of the major Trade Associations is attached in the Annex. The TA tree has so many branches that again you, dear User, have to apply your specialized knowledge to choose the most appropriate one.
And then you can follow the list of actions suggested in 2.2.1 “The Consumer Organizations”. Of course, there are certain differences:
- Trade Associations are not so well placed in the network of anti-cartel organizations as the Consumer Organizations. (For example, they are not specified as designated super-complainants). They are even looked at with some suspicion as a possible source of collusion.
The main point of TA activities rarely includes anti-cartel problem. There are other things to be done – to promote good practices among its members, to help harmonize and optimize the functioning of the industry it represents, to support the connections among the TA members, among the TA members as a whole and similar TAs from other countries or from other businesses and so on.
This, for sure, will raise some objections, some negative reactions to the idea to get involved in activities that are not usual for the TA and, moreover, can affect some of the important TA members and even the image of the TA itself.
Nevertheless, every Trade Association should be strongly concerned about the normal, competitive functioning of its industry/market. It is difficult to imagine a TA that will prefer to support the illegal activities of some of its members (even if they are the leading players) and refuse to react to a signal for deviations from the norms of competition. Especially when the signal is well-based and comes from a member of the TA (as generally should be the case with you, dear User).
The role that Trade Associations can play in anti-cartel activities is well defined in the papers of OFT.
Moreover, the TA has certain advantages and they are substantial:
- Its level of specific information concerning the industry/market in question is incomparable with any other organization, in some cases even with the Statistical offices.
- Organizing its own informal investigation, consulting the market leaders, recommending informally measures to repair the market situation, providing examples of good practice from the TA members and from outside – this is only the beginning of the list with measures that a TA can apply in response to a serious report signalling eventual collusion.
- For obvious reasons the basis of a TA to start its own TECoL Process is much better than the basis of a Consumer Organization.
- Being the organization closest to the eventually affected market its reaction can be much more flexible and its measures much less painful than those of the State Authority.
- The TA procedures for normalizing its market can be considerably less costly and applied to deviations that are negligible or even unreachable.
- So, dear User, maybe the Trade Association representing “your” industry/market will be more difficult to get involved in action that follows from your TECoL positive result. It has better information than anyone, it has better chances to get access to data than you have and, most of all, it has the best toolbox for approaching any kind of competition discrepancies occurring in its market segment (including better chances to present a case to the State Authorities). Do not hesitate, contact it, submit your TECoL report.
These are organizations that are given special status of trusted body whose complaints concerning abnormalities in a market are treated with priority by the respective State Commission. /”2.4 The super-complaint process is intended to be a fast-track system for designated consumer bodies to bring to the attention of the OFT and the Regulators, market features that appear to be significantly harming the interests of consumers.” OFT “Super-complaints”
Please, note, they are supposed to deal with markets. This is exactly the sphere of the TECoL Process.
184.108.40.206 The Super-Complainants are required to present a motivated, well detailed analysis of the market.
Hence, dear User, your TECoL report, will be a very strong argument and a very handy weapon for any Super-Complainant to present the case to the respective Competition Commission. Be sure that if once your signal, supported by the TECoL Report, is accepted for an overview by a Super-Complainant, the time and energy that you have spent to supply the data needed by the tool, are already lucratively rewarded.
The contact details of the Super-Complainants should be obtainable from the Competition Commissions.
- State Authorities – Competition Commissions
“Cartels are illegal under both the civil and criminal law.
Under the civil law (the Competition Act 1998), the CMA (Competition Commission) is able to fine companies up to 10 per cent of their turnover if they are found guilty of cartel activity.” OFT “Rewards for Information About Cartels”
Being illegal the cartels are prosecuted by the specialized institutions. Under the criminal law – by the courts; under the civil law by the Competition Commissions, specially created and authorized by the State. The targets, powers, methods, procedures, etc. of the state authorities differ substantially from those of any of the organizations mentioned until now.
Nevertheless, the OFT papers do not cease underlining the important role of the “third parties” – individuals, companies, consumer organizations, trade associations, super-complainants in the process of detecting and tackling cartels.
This “third party information” is considered so important that CME (the UK Competition Commission) offers a reward up to 100 000 pounds for it. Of course, as it is specified in the paper, it is information that can be qualified rather as “inside” than as a market analysis of the TECoL Process type. What is important is the strong need and the high value that the state authority commissions put on the signals from the public. Those signals should be based on reliable information.
220.127.116.11 Although we would strongly recommend that you, dear User, convey your signal, confirmed by TECoL report, to one of the organizations mentioned above – Consumer, Trade Association, an eventual decision to address directly to the Competition Commission totally depends on you. With the TECoL report we are confident that your signal will be considered as well-grounded.
You can contact the Competition Commission (the contact details are provided in the Annex) and report the case.
According to EU Regulation 1/2003 private entities are encouraged to launch complaints with competition authorities, courts or the Commission should they suspect price fixing or market destructions.
The application of TECoL before all types of state bodies and bodies of the EU for the purpose of seizure of legal procedure might result in consequent legal action by the economical entities identified as forming a cartel.
In other words, if the results provided by or the tool itself (if we consider the detection as a process performed by it) facilitates the detection of cartels then the results could be part of the basis of the administrative decision or of the grounds of the case.
We have no doubt that the tool might be applied by the courts and administrative tribunals or other administrative bodies of the Member States and EU. It will be extremely helpful when proving cartels. Consequently, EU citizens will also have an efficient tool for detecting cartels from a legal point of view.
Unfortunately to the best of our knowledge no such lawsuit have been decided upon in any EU court, however TECol gives YOU the theoretical flexibility to directly file a lawsuit against suspected cartel based on the results of TECol (please see the full document in our Legal framework for more details).
The consequences of your TECoL action could be really considerable. It is not necessary to lead to a court sentence or heavy fine in order to have its effect. Consequences that not only affect the already existing cartels but also constitute a very serious incentive for the companies to refrain from such activities in the future.
3.1 The mere presence of the public in the field of normal functioning markets is a heavy argument to avoid Competition Law infringement. Using the TECoL Process you, dear User, are well-equipped to:
3.1.1 Present well-informed and soundly based signal to the network of different organizations with different roles in the anti-cartel war.
3.2 TECoL can be a very useful filter between the individuals and the public. To separate the well-informed from the “low quality” signals is an achievement that is not only time and resource saving but also considerably augments the impact of the civil society. With TECoL the “authors” of a signal and the organizations addressed have high quality of information that is not frivolous or vexatious i.e. that can find access and exercise its impact on the public.
Publicity is a mighty anti-cartel stronghold. Usually it is the fines and the court sentences that are considered as the measures that really matter. However, the public image of a firm turns out to be even more important than the heavy fine.
Armed with TECoL YOU can make a difference. YOU can make the formation of the cartels and/or their continuation not worthwhile. YOU can help the civil society in Europe to create better and fairer environment for business and growth.
We believe in YOU.