Kris Dekeyser (DG COMP)
There is a substantial body of case-law from which it is possible to extract some useful rules on information exchanges under Article 101 TFEU. The information exchanges that the Commission has dealt with in its recent cases are often concerted practices. In simple terms, they may be illegal when they ’reduce uncertainty’. As the Court of Justice said in Tate & Lyle, ’uncertainty’ is ’the main stimulus of competition’. The ’reduction of uncertainty’ test applies to both ’object’ and ’effect’ cases.
’Reducing uncertainty’ means that commercially sensitive information gives the recipient more confidence to adapt his or her business behaviour in an anti-competitive way (e.g. by raising price or cutting output or punishing deviations).
Importantly, when there is an exchange of information between companies, it is presumed that the recipient of the information uses the information. In the Polypropylene case, the ECJ ruled that “a concerted practice implies, besides undertakings’ concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two”. However, the “conduct on the market” and the “causal link” are presumed but can be rebutted. This is known as the Anic or Hüls presumption.