1. PURPOSE OF THE CODE OF CONDUCT
This Code of Conduct is designed to inform members of the Association of their obligations under the US and EU antitrust and competition laws.
These laws seek to preserve free and open competition. As a general rule, competitors may not restrain competition among themselves through understandings or agreements with respect to price, production or distribution of their products, or through other agreements that restrict competition. Furthermore, one group of competitors may not act in concert to restrict the competitive capabilities or opportunities of their competitors, suppliers or customers.
The Association Code of Conduct is not limited to competition issues. In all Association activities, both the Association and its members will act in compliance with the applicable laws.
The Association members are responsible for their compliance with applicable laws. The Association will not tolerate or abide its members violating the antitrust laws, and it will scrupulously monitor the Association’s activities to guard against antitrust and competition law violations. While the focus of the mission of the Association will be in Europe, participation in the Association may not be exclusive to companies from the European Union. Thus it will seek to follow the rules of the most restrictive jurisdiction in which the Association and its members do business, or in which an Association activity is conducted.
2. APPLICABILITY OF THE ASSOCIATION CODE OF CONDUCT
The Association is an organization that, by its very nature, includes companies that compete with each other in the marketplace. Its purpose is to promote hydrogen in Europe through legitimate joint activities that have been carefully scrutinized by legal counsel, and that are monitored for legal compliance. While the Association retains experienced counsel to help guide the activities of the Association, antitrust compliance is the individual responsibility of each member. Taking your responsibility seriously means that it is important that the Association and its member companies refrain from undertakings activities that violate any antitrust or competition laws.
The following Rules apply equally to formal Association meetings, Association social events, informal gatherings and communications that occur in the context of Association activities, and to private business meetings between members held in conjunction with Association events.
To assist the Association with legal compliance obligations, a legal counsel may later be appointed to monitor the activities of the Association for compliance with antitrust and competition law.
3. RULES FOR ASSOCIATION ACTIVITIES
a. Agreements between undertakings, decisions between associations of undertakings and concerted practices, directly or indirectly, to set or fix prices are strictly prohibited by antitrust laws and in some jurisdictions are punishable criminally. Therefore, there should be no discussions regarding your company’s or competitors’ current or future prices or pricing practices, or any element that might affect prices, such as costs, discounts, terms of sale, services or allowances provided to customers, or profit margins. Such information should not be discussed even if it is available to competitors through other sources.
b. Agreements between undertakings, decisions between associations of undertakings and concerted practices set to divide up the customers, geographical areas, sourcing supply, or classes of products are also prohibited by the antitrust laws and in some jurisdictions are punishable criminally. Therefore, do not discuss your company’s future business or operating plans as they relate to particular geographic markets, specific customers, classes of customers, competition, suppliers, or specific products or types of products.
c. Given the risk do not disclose to others at Association meetings or events any competitively sensitive information of any nature, such information about your company’s future pricing, customers or products development plans.
d. At a later stage of its development the Association may be interested in developing industry standards. If a standard is developed, each company may decide unilaterally whether or not to support the standard. There is no legal obligation to support any particular standard. Do not enter into any agreement or understanding regarding compliance with standards developed by the Association or other organizations, such agreements to follow or not to follow specifications established by any standard-setting body.
e. It is unlawful for competitors to agree to boycott third parties who are commercial rivals or who do business with commercial rivals. Therefore, do not discuss or enter into any agreement or understanding regarding the companies with which you will not do business.
f. An industry agreement to use a particular technology, to buy raw materials only from a certain source or to produce only a certain type or quality of product may violate the antitrust laws. Therefore, do not discuss or enter into an agreement or understanding with a competitor regarding the types of products or technologies that your respective companies will produce, market or support.
g. It is illegal to agree with competitors to limit production capacity, to agree not to add new capacity, or to agree to shut down existing capacity. Therefore, do not discuss or enter into any agreements regarding capacity or output plans.
h. Agreements between undertakings, decisions between associations of undertakings and concerted practices which limit or control technical developments or investments are strictly prohibited.
i. If you have any doubt about an Association activity or subject of discussion, consult your own company’s counsel. You may also wish to consult with the appointed legal counsel.
j. This list of restrictive competition practices is not limitative and is subject to the evolutions of international competition law.
These rules are intentionally restrictive. To the extent that any member believes that a contract or activity that it desires to make or propose in conjunction with Association’s activities is entirely legitimate, but might nonetheless rum afoul of these rules, the member may seek a specific waiver of the rules in writing. The request for a waiver should be addressed to the Chairperson, with a copy to legal counsel. The Board of Directors will consider the request in due course and issue a written decision.
4. PENALTIES FOR MISCONDUCT
Penalties for violating the antitrust laws are severe. In the United States, for example they include imprisonment, fines, damages of three times the amount of injury caused, and far-reaching restrictions on future conduct. The United States antitrust laws are relevant because the United States applies its law to companies in other countries where their conduct has a direct, substantial and reasonably foreseeable effect on United States commerce.
The competition laws of the European Union (EU) also seek out and punish anticompetitive behaviour that affects trade between EU Member States, irrespective of where it takes place. The EU Commission has emphasized its commitment to fight cartels and EU fines are getting higher with every infringement. The Commission is currently restructuring its services to be able to police cartels more effectively. Moreover, the EU has exported its competition rules to all those countries that aim to join the EU in the future. In addition, all Member States of the European Union have national competition authorities monitoring the respect of competition rules and sanctioning infringements to either national or EU competition law. Sanctions may in particular take the form of imposition of fines, and in some Member States, imprisonment.
5. EXTERNAL COMPETITION AUDIT
An independent audit shall be conducted by an external legal counsel upon request from the Association every two or three years in order to verify the respect of competition rules in the activities of the Association.
The Association is an international association that will scrupulously adhere to legal requirements and competition laws, and will not tolerate conduct by members that may violate the law. Conduct by members that violates this Code of Conduct and these rules may be considered by the Board of Directors as a justification for exclusion from the Association. Any request for clarification or for an exception to the rules should be addressed to the Board of Directors.
Brussels, December 2004 (Signatures)