Information Exchanges and Competition Law: A Few Comparative Law Thoughts

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Pedro Callol, Nov 11, 2014

Information exchanges between competitors have been an object of interest for competition authorities on both sides of the Atlantic for decades now; in the European Union since the 1970s with cases such as the IFTRAGlass Containers and later the UK Tractor information exchanges, and in the United States as far back as the 1920s with cases such as Maple Flooring or American Column & Lumber. Information exchanges between competitors have not only given rise to a considerable amount of cases, but also to interpretative notices by the respective competition authorities. The U.S. Federal Trade Commission and the Department of Justice jointly issued in 2000 the Antitrust Guidelines for Collaboration Among Competitors, and the European Commission issued in 2011 the Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Cooperation Agreements.

In spite of this attention, the matter continues to generate considerable confusion in many instances, which may be due, among other things, to the fact that most information exchanges present mixed features and can rarely be regarded as clear-cut. Information exchanges that increase transparency, for instance, are in some circumstances pro-competitive, because they may enable purchasers to compare offers more easily, or may enable the formation of ad hoc offers suitable for individual clients—both of which should be viewed positively. In other circumstances, however, arrangements that enable transparency may also be a device for collusion, enabling monitoring and eventual punishment of deviating offers. A single information exchange that under some circumstances is pro-competitive may look anticompetitive in other circumstances and, what is often the case, the same information exchange under the same circumstances may present both pro-competitive and anticompetitive features.

Grey is most often the color of information exchanges.