Of the International Photovoltaic Equipment Association e. V.
A. General, Scope of Policy
1. The purpose of the International Photovoltaic Equipment Association (“Association”) is to provide the industry with a platform where the exchange of ideas can take place, along with building coalitions with technology, service, and advocating organizations to build a broader commercial understanding of the PV manufacturing industry. In this connection the limits drawn by anti-trust law are to be observed.
2. The members of the bylaws of the Association are acting in the interest of the Association (and not in the interest of their respective employer having nominated them into the body, as the case may be).
3. The Association has adopted this Compliance Policy (“Policy”) by resolution of the International Photovoltaic Equipment Association Executive Board during a meeting that was held on 04 February 2013 and applies to the work in the statues and bodies of the Association. The International Photovoltaic Equipment Association Executive Board shall procure that all employees / executives have made familiar, and undertake in writing to comply, with this Policy.
B. Conduct during meetings
The following requirements are to be observed:
4. Meetings of the Association shall require an official invitation and a written agenda circulated in advance. The agenda shall be as detailed as necessary to enable the invitees to understand what will be the subject matter (individual topics) of the meeting and to assess whether there could be an Antitrust issue.
5. At the beginning of the meeting of the Association (such as General Members Assembly, meeting of the Executive Board, Supervisory Board or working group) the chairman or the person running the meeting (“Chairman”) shall point out to the necessity to comply with Antitrust laws and in particular this Policy. The Chairman shall be responsible by running the meeting to procure that Antitrust law and this Policy shall be complied with, this being without prejudice to all participants’ responsibility.
6. Meetings of working groups shall only be held if a member of a body of the Association is attending. Where this is exceptionally not possible (in particular due to the high number of meetings of working groups), at least the official Chairman of the working group or, in case he is not able to attend, his deputy shall attend. The preceding para 5 shall apply accordingly.
7. Minutes of Meeting (including a list of participants) shall be taken, which the Chairman shall ensure. The Minutes shall be distributed within reasonable time after the meeting to the participants and in case it does not only concern a sub-working group: to all members of the Association.
C. Proper Conduct in view of Antitrust law
Members of the Association may be competitors in various areas. Non-compliance with Antitrust laws might lead to substantial fines and other consequences for all persons involved and their companies or organizations. Therefore, the members and their delegates shall also comply with the requirements set out below when acting in or for the Association or bodies / working groups / sub-working groups:
8. The members and their delegates shall not exchange with, nor make available to, other members / their delegates any commercially sensitive information (CSI). CSI shall include, but is not limited to: information on prices or price elements, margin, intended price increase; customers, sales areas, sales channels and sales / marketing strategy; market shares, turnover, expectation of turnover; R&D projects, new products. CSI shall not include information which is in the public domain or is easily publicly accessible. This shall be without prejudice to making available information to another member which is not a competitor, subject to confidentiality obligations and outside of the activity in or for the Association.
9. Irrespective of whether or not such information is publicly available the members and their delegates will not enter into agreements (formal or otherwise) on the items set out in Section 8 above.
10. In case that a member / its delegate on an exceptional basis considers it necessary within the co-operation to exchange information or to enter into an agreement on items as referred to in Sections 8 and 9, such member will first clear with its legal department the Antitrust compliance of such activity and submit its desire to the …. [Management Board / Board of Directors] of the Association but only after a positive statement in writing by its legal department that there are no substantial Antitrust concerns.
11. As a consequence of the restrictions set out in Section 8 above the Secretary and persons working with the Secretary of the Association and, if existing, the managing director and members of bodies of the Association shall refrain from making available to any member or its delegates information on other members (including information on any member’s business) and from collecting such information, unless such information are identical to those which are in the public domain or publicly accessible.
12. Special requirements in view of standardization projects: To the extent the Association will be engaged in norm or standard setting (including de facto standards) within the Association or the Association being participant in a standard setting, prior to such activities the members will assess the applicable pre-conditions under Antitrust law. Note: for the “safe harbour” normally compliance with the requirements set out below is required: limiting the standard setting to characteristics and rules necessary for ensuring compatibility / interoperability / safety; open, transparent and non-discriminatory procedure; access to the results of the standard setting at reasonable, fair and non-discriminatory conditions for all parties interested.
13. Special requirements in view of joint R&D: joint R&D projects (even in case competitors participate) are not per se illegal. However, the permissibility shall be checked prior to any such project, since general statements are not possible. The permissibility is dependent, inter alia, on the market(s) concerned, market shares of the participants, the competition situation and in particular any explicit or implicit agreement on restriction of competition which might be included in the R&D agreement.