New frontiers of exchange of information

Law & Economics Workshop in partnership with Norton Rose Fulbright and Compass Lexecon.

How to deal with complex information exchanges?

Alexis Brunelle

In order to determine whether an exchange of information between non-competitors may constitute a concerted practice, the undertaking must consider whether the communication has any interest other than to increase transparency for competitors.

The purpose of my presentation is to explain how competition law can deal with complex exchanges of information. After recalling the general principles for analysing information exchanges, I will turn to the central question of demonstrating agreement of will in the case of complex exchanges.

Exchanges of information are frequent and habitual behaviours: information on the sector, standards, prices, quantities, market trends, etc. They may take place publicly (dissemination in the press) or in the context of commercial relations. But information exchanges can also be used to support anti-competitive practices (e.g. monitoring a cartel), and constitute autonomous anti-competitive practices. However, there is no specific practice of exchange of information; the general concept of concerted practice is used. It is an agreement not to adopt a specific behaviour but to increase market transparency and consequently limit the autonomy of the players. The issue of competitive analysis of information exchanges has been extensively addressed in practice and has been the subject of several publications (Commission Guidelines on Horizontal Agreements, Competition Authority Report 2009). A classic distinction is made between generally anti-competitive exchanges by object (future prices and quantities) and those that merit further analysis (current or past data, other types of strategic data). In this framework, the question of demonstrating the agreement of wills is generally dealt with by the application of the classical rules of evidence in competition law. Relatively simple presumptions are often used (presence at a meeting, etc.) because they concern direct exchanges between competitors.

Photos © Léo-Paul Ridet

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  • Norton Rose Fulbright (Paris)
  • Compass Lexecon (Paris)
  • French Competition Authority (Paris)