The scope of what qualifies as illegal information exchanges under EU law is potentially very broad. As in other jurisdictions, information exchanges between competitors of individualized data regarding their intended future prices or quantities carry the highest risk.This also applies where competitors exchange information on the prices at which they purchase from their suppliers, as illustrated by recent EU enforcement against purchasing cartels.
However, other types of information exchanges may give rise to EU antitrust concerns as well, for example those relating to individualized data on current prices, which may increase market transparency and facilitate coordination among competitors. While existing EU guidelines dealing with information exchanges are currently under review, businesses are well-advised to adopt a cautious approach pending any clarifications which may follow from the updated guidance.
This article considers several issues related to information exchange between competitors, including:
- Whether companies can incur liability for merely exchanging information, in the absence of an actual agreement to fix prices or they do not act upon the information exchanged;
- Whether certain types of information exchanges are regarded as more problematic than others;
- Whether companies can incur liability for one-way disclosure/passive information exchanges, or sporadic/one-off information exchanges;
- Whether publicly exchanging information constitutes an infringement; and
- Whether information can be shared freely with companies that are not competitors.
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