Exchanges of information are complex and variable practices, the effects of which may be neutral, anti-competitive or pro-competitive depending on the type of information exchanged, the operators involved or the economic context. Information exchanges are a recurrent issue for companies. However, their legal framework, consisting of a few symbolic decisions and rulings of principle, is not clear-cut. The European Commission’s guidelines, published in 2011, have shed some light on these practices. The challenge is to identify the analytical grid applicable to "pure" information exchanges.
Exchanges of information refer to a wide variety of practices that do not fall within a single economic analysis framework. For example, it can be private or public information; information exchanges can be direct or indirect, i.e. through a third party. The most important distinction mentioned in the 2011 Guidelines relates to the nature of the information exchanged: is the information past or future, recent or not recent, individual or aggregated? Are the disclosures verifiable? The 2011 Guidelines make a distinction between exchanges of information on individual, strategic and future data, which are a restriction of competition by object - confirmed by the Court of Justice in the Bananas case (C-286/13P, 2015) - and exchanges of information on other types of data require a casuistic analysis as they may constitute restrictions by effects. The central question in this analytical framework is whether the information exchange in question may facilitate tacit collusion. It may facilitate the coordination of upstream operators, monitoring during a cartel or retaliation.