Information Exchange and Related Risks: A Jurisdictional Guide, Zoltán MAROSI and Marcio SOARES

Zoltán Marosi, Marcio Soares (eds.)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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The exchange of information between competitors is critically assessed by competition law for various reasons. Some information may be a competitive advantage for the company, allowing it to distinguish itself from its competitors. The information may also have a significant monetary value, depending on the degree to which it is disseminated among competitors or whether it is up to date. Also, the exchange of information reduces the uncertainty that exists between competitors, which can lead to an adaptation of behavior. In order to guarantee free and undistorted competition, it is therefore essential that the exchange of commercially sensitive information is regulated and strictly limited. Information is the "black gold" of competition: it is coveted but also protected by companies; the exchange of information between competitors also deprives competition of its quintessence.

The importance and the stakes related to the exchange of sensitive information between competitors are not unknown to the legal community. The book Information Exchange and Related Risks: A Jurisdictional Guide, edited by Zoltán Marosi and Marcio Soares and published by Concurrences in cooperation with the International Bar Association, provides a clear and concise overview of the legal regime governing the exchange of information between competitors in 28 jurisdictions in the world’s key economic areas. Many renowned lawyers from five continents have contributed to this mosaic. Anthony M. Collins, Advocate General at the Court of Justice of the European Union, recalls in the preface that the exchange of sensitive information may constitute a concerted practice - broadly defined by the Court of Justice - within the meaning of Article 101 of the Treaty on the Functioning of the European Union (TFEU). The guidelines on vertical restraints and especially those on the applicability of Article 101 TFEU to horizontal cooperation agreements give examples of anticompetitive exchanges of information. However, the author insists on the need for flexibility in these guidelines. It will be interesting to see what approach the European Commission will take on this subject during the imminent revision of its horizontal guidelines.

In an introductory chapter entitled "Key Challenges When Approaching Information Exchange", Damien Geradin discusses the rationale for prohibiting the exchange of commercially sensitive information. He poses a central question: which information exchanges are problematic under competition law and which should be considered legitimate? The author reflectively presents the relationship between market uncertainty and consumer welfare, before highlighting the advantages and disadvantages of such exchange.

The different contributions, divided into three sections, have a streamlined and identical structure, allowing the reader to quickly grasp the legal regime of information exchange and its risks. The national reports are generally divided into six parts. In the first part, the legal regime and the main principles are set out. Then, the authors describe the types of information exchange covered by competition law before explaining the implementation of competition policy, illustrated by major decisions. The sanctions applicable to an exchange of information that violates competition law are also the subject of a separate section. These vary greatly from one jurisdiction to another and are not only of a pecuniary nature. The contributions conclude with a section on so-called "safe harbours" and exemptions as well as a particularly interesting division containing best practices regarding the exchange of information, whether in negotiations or cooperation between competitors, in the context of mergers and acquisitions or within professional associations. The authors, highly specialized in their national competition law, draw a line between practices to follow and missteps to avoid. It is noticeable that legislators differ in their approach to the recurring problem of the exchange of sensitive information. The editors of the book emphasize the range of difficulties that competition authorities face. They wisely advise companies to be aware of these differences in order to avoid often heavy financial penalties.

This book is a real working tool and a practical guide for lawyers in many jurisdictions. It also allows academics, competition authorities and legislators to have an overview of the different legal regimes, which will help them to develop a critical mind about their national regime. A book to have at hand and to recommend without hesitation!

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  • University of Paris I Panthéon-Sorbonne

Quotation

Agnès Reinhold, Information Exchange and Related Risks: A Jurisdictional Guide, Zoltán MAROSI and Marcio SOARES, November 2022, Concurrences N° 4-2022, Art. N° 109434

Publisher Concurrences

Date 9 September 2022

Number of pages 522

ISBN 978-1-954750-02-9

Visites 126

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