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

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.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. In order to determine whether an undertaking's conduct restricts competition, it is essential to present a clear and coherent theory explaining how the alleged conduct may harm consumers. Moreover, this theory of competitive harm must be tested against the facts and the specific economic characteristics of the market in question. This principle is well established in the field of merger control as well as, to a large extent, in the analysis of abuses of dominant position. 2. However, in the practice of the European Commission and several national competition authorities, cartel analysis seems to escape this principle. In fact, authorities often tend to

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Francesco Rosati, Exchanges of information and other coordinated conducts: The need for theory of harm, December 2008, Concurrences N° 4-2008, Art. N° 22145, pp. 27-30

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