TFEU Art 101 (1) : Information Exchange.
TFEU Art 101 (1) : Information Exchange.
TFEU Art 101 (1) : Information Exchange.
University of Oslo
Faculty of Law
Case C-41/90 Hfner and Elser v Macrotron GmbH [1991] ECR I-1979.
Case C-205/03 P Federacin Espaola de Empresas de Tecnologa Sanitaria (FENIN) v Commission [2006] ECR I6295.
See generally C-32/78 and 36-82/78 BMW Belgium v Commission of the European Communities [1979] ECR 2435,
Case T-148/89 Trefilenrope SARL v Commission [1995] ECR II-1063 and Case T-8/89 DSM NV v the Commission
(Polypropylene) [1991] ECR II-1833 where the European Courts discussed the nature and extent of cooperation
between undertakings required for the purpose of Article 101.
C-6 and 58/64 Consten and Grundig v Commission [1966] ECR 299 where the CJEU applied Article 101 to a vertical
arrangement.
Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union, horizontal cooperation agreements [2011] OJ C11/1 (Guidelines) at [65].
See generally Case C-238/05 Asnef-Equifax, Servicios de Informacion sobre Solvencia y Credito, SL v Asociacion de
Usuarios de Servicios Bancarios (Ausbanc) [2006] ECR I-11125 where the CJEU accepted that information sharing can
result in` benefits to customer service.
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Guidelines at [99].
Guidelines at [61] and [89].
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It follows from this that a prohibited information exchange should result in greater
market transparency which adversely affects competition. This requirement of
causation is clarified in Commission v Anic Partecipazioni14:
A concerted practice implies, besides undertakings concerting together, conduct on the market
pursuant to those collusive practices, and a relationship of cause and effect between the two.
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Joined Cases 40114/73 Suiker Unie and Others v Commission [1975] ECR 1663.
Ibid, at [73].
Case C-8/08 T-Mobile Netherlands BV and others [2009] ECR I-4529.
Ibid, at [35].
Case C49/92 P Commission v Anic Partecipazioni [1999] ECR I4125.
Ibid, at [118].
It is clear from these lines of reasoning that cause and effect is key to the
characterisation of the kind of conduct that constitutes a concerted practice. In fact, the
CJEU has gone as far as deeming contact to be a rebuttable presumption for conduct
and causation.16
RECIPROCAL AND UNILATERAL CONDUCT
As indicated previously, information exchange may occur by way of various means, for
example by arrangement or by unilateral or reciprocal conduct. In Cimenteries CBR17
reciprocal conduct was found to be necessary under Article 101(1):
[...] the concept of concerted practice does in fact imply the existence of reciprocal contacts [...].
That condition is met where one competitor discloses its future intentions or conduct on the
market to another when the latter requests it or, at the very least, accepts it.
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[] it must be presumed that the undertakings taking part in the concerted action and remaining
active on the market take account of the information exchanged with their competitors in
determining their conduct on the market.
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The Court went on to delineate contact as the distinguishing feature between tacit
collusion and concerted practice:
[independence] does however strictly preclude any direct or indirect contact between such
operators, the object or effect whereof is either to influence the conduct on the market of an
actual or potential competitor or to disclose to such a competitor the course of conduct which they
themselves have decided to adopt or contemplate adopting on the market.
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However, the Court went on to preserve the usefulness of parallel conduct vis--vis
proof for the purpose of Article 101(1) by maintaining that parallel conduct can be
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Dutch Independent Post and Telecommunications Authority (OPTA), Is Two Enough?, Economic Policy Note, No 6,
September 2006.
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Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlstrm and others v
Commission (Wood Pulp) [1988] ECR I-5193.
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Ibid, at [71].
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M Bennett and P Collins, The Law and Economics of Information Sharing: The Good, the Bad and the Ugly,
European Competition Journal, Vol 6, No 2, p 312.
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Ibid.
29
M Bennett, A Fletcher, E Giovannetti and D Stallibrass, Resale Price Maintenance: Explaining the Controversy, and
Small Steps Towards a More Nuanced Policy in B E Hawk (ed), International Antitrust Law & Policy: Fordham
Competition Law 2009, Juris Publishing, New York, 2010.
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the market will generally be restricted by effect.34 The removal of uncertainty must be
referable to an economic parameter, namely price, output, product quality or variety, or
innovation.35 As such, the exercise of assessing information that may be restricted by
effect must take into account particulars of the market as well as the information itself.
In general, markets that are transparent, concentrated, non-complex, stable and
symmetric are more prone to anti-competitive effects as a result of information
exchange. However, even markets that are less susceptible can be adversely affected
in certain circumstances. Moreover, such markets can even be changed over time by
on-going concerted information sharing to make them prone to misuse of information.
An effects analysis must consider the following market characteristics: transparency,
concentration, complexity, stability and symmetry.36 Other characteristics may also be
material depending on the circumstances; for example, the length that an undertaking
has been operating in a market is considered to be directly proportional to the
likelihood of collusion.37
The characteristics of information likely to produce anti-competitive effects are as
equally dependent on circumstances as the market. Briefly, some of the considerations
outlined by the Commission are: a) individualised information is more likely to contain
potential for coordination as opposed to aggregated information;38 b) genuinely public
and readily accessible information is not likely to raise competition concerns (cf. private
information or public information with substantial accessibility barriers);39 c) information
pertaining to commitments assured by firms raises competition issues as competitors
can rely on that information when designing strategy (cf. speculations and mere
ideas);40 d) current and future information as well as past information that foretells
future conduct presents competition risks by way of reducing uncertainty;41 e) frequent
exchanges facilitate greater accuracy of information and further reduces uncertainty;42
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E sterud (2014), Cartels/Horizontal Agreements (Article 101 TFEU) [PDF], retrieved from the University of Oslo EU
Competition Law Fronter Classroom: www.fronter.com/uio.
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Ibid.
Guidelines at [74].
Guidelines at [92] and [94].
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M Motta, Cartels in the European Union: Economics, Law, Practice, in X Vives (ed), Competition in the EU: Fifty
Years on from the Treaty of Rome, Oxford University Press, Oxford, 2009, pp 95-104.
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Guidelines at [62]
Guidelines at [91].
and f) parties to the exchange should cover a sufficiently large part of the relevant
market for the coordinated practice to have appreciable effect and not be stymied by
other competitors.43
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Guidelines at [87].
Guidelines Part 3: Research and Development Agreements.
Guidelines at [74].
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