TAIWAN Trends and Developments Contributed by: Stephen Wu, Yvonne Hsieh, Wei-Han Wu and Erica Chiu, Lee and Li, Attorneys-at-Law
regard, identify the potential competitive issues, and then lay out the determination process for such issues. The Guidelines also identify the following three types of business activities as examples for enterprises to consider in order to reduce the risk of violations. Types of business activities Activities involving no mutual restraint of trade and no concerns of concerted actions These include: • sharing information on environmental sustainability and delivering materials that are irrelevant to busi - ness operations or competition, such as exchang - ing the latest government policies and information on subsidies from industry authorities for environ- mental sustainability transformation; • advocating environmental sustainability achieve - ments and holding relevant joint training sessions and awareness promotion activities for employees on topics such as energy conservation and the reduction of greenhouse gas emissions; • conducting research on environmental sustain - ability issues and jointly establishing databases of relevant information on products or services; and • issuing joint statements on co-operation with gov - ernment policies on environmental sustainability. Activities that would likely constitute concerted actions , but may be specifically approved in accordance with the law if the enterprises involved believe that such activities are conducive to environmental sustainability These include: • joint procurement of equipment for the purpose of increasing energy efficiency and operational efficiency; • unification of the specifications of products or components for the purpose of increasing resource recovery rates and reducing costs; • joint research, development and technology inno - vation for the purpose of encouraging the recycling of resources and improving the quality of energy- saving products; • joint procurement of raw materials that are less harmful to the environment or joint efforts on reducing the use of products made from environ -
mentally unfriendly raw materials for the purpose of reducing environmental pollution; and • other activities that involve mutual restraint of competition but are beneficial to environmental sustainability. The TFTC explains that, when deciding whether to grant a special approval of a concerted action that has the purpose of environmental sustainability, the key consideration is the balance between the impact that such action will have on market competition and the benefits that such action will bring to environmental sustainability. Activities that would likely constitute unlawful concerted actions and threaten market competition These include: • price-fixing – ie, jointly determining the price of goods or services on the grounds that they are environmentally sustainable; • allocating transaction counterparties – ie, jointly agreeing to divide up sales territories, only work with certain transaction counterparties, or not compete with certain transaction counterparties on the grounds of reducing costs on environmental sustainability; • quantity-fixing – ie, jointly determining the pro - duction and sales quantity as well as production capacity; • joint procurement or sales strategies – ie, jointly agreeing to only procure or sell certain goods or services on the ground of promoting environmen - tally sustainable goods or services; and • joint foreclosure – ie, preventing other enterprises from entering the market in the name of developing environmental sustainability. Nevertheless, the TFTC has also emphasised that the Guidelines only provide examples of business prac - tices on environmental sustainability that may consti - tute concerted actions; whether a specific business practice is illegal will need to be determined by the TFTC based on the actual circumstances of the case. Enforcement As noted above, the Guidelines reflect the TFTC’s recent enforcement stance, which places increased
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