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N° 4-2008

Exchanges of information and other coordinated conducts  : The need for theory of harm

LAW AND ECONOMY : EXCHANGE OF INFORMATION - COMPETITIVE HARM - CONSUMER HARM - MISCONCEPTIONS

We argue that a rigorous assessment of coordinated conduct must be based on a clear and coherent theory of competitive harm. Crucially, this holds for the assessment of the object as well as for the analysis of the effects of the alleged infringement. At a minimum, this theory needs to show how the conduct in question can plausibly result in probable consumer harm in the specific economic and factual context of the case. Where this analysis is missing, serious mistakes can be made in the assessment of the existence or the scope of the infringement. This conclusion holds for the analysis of information exchanges as well as of other types of coordinated behaviour. We discuss the key elements of such theories of harm and correct some common misconceptions.

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