Overview of the EU Commission's Guidance on Information Exchange

In June 2023 the European Commission adopted its revised guidelines on horizontal cooperation agreements (Guidelines) together with its revised horizontal block exemption Regulations on R&D and Specialisation Agreements.  For an overview of the revised Guidelines, which came into force on 21 July 2023 when they were published in the EU's Official Journal, see our blog post here.

The Chapter on Information Exchange has been rewritten to take account of the Court of Justice of the EU's (CJEU) case law and the Commission's decisional practice. It includes additional guidance on the key concepts and framework for the assessment of commercially sensitive information, including the type of information exchange that can be expected to qualify as a restriction of competition by object. There is new and expanded guidance on areas not covered or covered only briefly in the previous guidelines, such as around indirect forms of information exchange, including hub-and-spoke and on unilateral disclosure through public announcements. There is also a new section with practical guidance on how to reduce the risk of competition law infringements in the context of information exchange.

It is worth noting that, unlike for other chapters in the Guidelines, there is no safe harbour for information exchange, as an exchange between competitors of commercially sensitive information can still have a significant effect on competition and can be treated as a by object infringement in certain circumstances, even where the parties have a very small market share.

Introduction

The Commission recognises that information exchange is a common feature of many competitive markets and can result in various types of efficiencies (by addressing information asymmetries, ensuring informed decision making, achieving internal efficiencies as a result of benchmarking against best practices, developing new or better products or services) and may benefit consumers by assisting with searches and improving choice.

However, a key principle of competition law is that undertakings must act independently on the market, as this ultimately leads to better outcomes for consumers as it typically results in greater choice and lower prices.  Whereas this does not prevent undertakings from adapting themselves intelligently to the conduct of their competitors on the market, it does prevent any direct or indirect contact between undertakings (by way of agreement, concerted practice or decision by an association of undertakings) that is likely to influence the commercial strategy of competitors.

The main competition concerns arising from the exchange of commercially sensitive information relate to facilitation of collusion, by artificially increasing transparency between competitors in the market and to foreclosure, when the information exchange places competitors that do not take part in the exchange at a competitive disadvantage.

Nature of the information exchanged

The Guidelines make it clear that Article 101(1) TFEU applies where an exchange of commercially sensitive information is likely to influence the commercial strategy of competitors. This will be the case where the exchange of information reduces uncertainty around the operation of the market in question. The key factors to take into account are whether the information is commercially sensitive, the level of detail that is being shared, the age of the information and the characteristics of the relevant market.

Information on pricing, costs, capacity, production, quantities, market shares, customers, plans to enter or exit markets or other elements of a company's business strategy will generally be considered as commercially sensitive. Where information is publicly available (eg information published by regulators), an additional information exchange between competitors may further reduce strategic uncertainty in the market. This will be the case where the information is exchanged in a less aggregated or more granular form, where it is exchanged more frequently than it is published, or where further analysis or comments are attached to the information.

Exchanges of individualised information are more likely to facilitate a common understanding on the market between competitors than the exchange of aggregated information, provided the information exchanged in aggregated form cannot be attributed to a particular undertaking or the data are aggregated across a range of different products with different characteristics or belonging to different markets.

The exchange of historical information is also unlikely to raise competition concerns. Whether information is historical depends on the characteristics of the relevant market, such as the frequency of sale and purchase negotiations in the sector and the age of information typically relied on for the purpose of business decisions.

Frequency of the exchange of commercially sensitive information is also relevant.  What constitutes a frequent or infrequent exchange of information depends on the particular circumstances of the relevant market.  For long-term contracts a less frequent exchange of information may be sufficient to result in a collusive outcome than will be the case for markets characterised by short-term contracts.  However, the Guidelines make it clear that, depending on the structure of the market and the overall context of the exchange, even a one-time exchange of commercially sensitive information can result in an infringement of the competition rules, as was the case in T-Mobile.

Market characteristics will also affect the likelihood that an information exchange will result in collusion or foreclosure, as they will determine the usefulness of the information to competitors. Relevant market characteristics include the level of transparency in a market, the number of undertakings active in the market (market concentration), barriers to entry, complexity of the market and market stability.

Different types of information exchange

Article 101(1) TFEU applies to bilateral or multilateral exchanges of commercially sensitive information between competitors but it will, under certain circumstances, also apply to a unilateral disclosure or to an indirect information exchange.

Unilateral disclosure of information can lead to an infringement where a competitor requests or accepts the commercially sensitive information and acts on it, provided there is a causal link between the disclosure and the subsequent conduct.  Where an undertaking receives commercially sensitive information from a competitor there is a presumption that it will use that information to adapt its market conduct.  This presumption is rebuttable, but the undertaking concerned will need to take active steps to do so, for example by making it clear that it does not want to receive that information or by reporting it to the relevant authorities.

Unilateral disclosure of commercially sensitive information through public announcements does not exclude the risk of infringement, as it may be a way for competitors to signal future intentions to behave on the market in a specific way.  In line with its decision in the Container Liner Shipping case, a key element in the Commission's assessment will be the extent to which the announcement will have a consumer benefit.

By way of example, the Guidelines refer to a unilateral public announcement that refers to an undertaking's intentions relating to future pricing.  Such an announcement does not commit the disclosing undertaking to its customers, but may signal its intended commercial strategy to its competitors.  The announcement does therefore not create benefits for consumers but may facilitate collusion.  The advertising of current retail prices at petrol stations on the other hand does benefit consumers, as it allows them to compare petrol prices before filling up their cars.  The Guidelines make it clear that, depending on the legal and economic context, a public disclosure that signals future intentions on key competition parameters (such as pricing or quantities) may qualify as a restriction by object.

Indirect information exchange can take place through a third party such as a service provider, a trade association, a supplier or a customer, or a shared algorithm, where the collusion is facilitated or enforced via the third party. The Guidelines make it clear that competition law does not prevent customers from independently disclosing one supplier's pricing offer to another supplier with whom the customer is in a commercial negotiation.  This must however be distinguished from a position where a customer is aware of an anti-competitive arrangement between different suppliers and exchanges information in order to implement such an arrangement.

A case by case analysis of the role of each participant (taking into account the level of awareness of the providers and recipients of the information that the information will be exchanged between competitors) will be necessary here to determine whether the exchange of information constitutes an anti-competitive agreement and who bears liability.  A third party may be held liable for such collusion and the Guidelines refer to the caselaw on intermediaries which confirms that the prohibition in Article 101(1) TFEU is not directed solely to the parties to an agreement active in the market affected by the agreement.

Where a common manufacturer or supplier acts as a 'hub' to pass on information to several distributors or retailers, or where a distributor or retailer passes on commercially sensitive information to several suppliers, the indirect information exchange is referred to as a 'hub-and-spoke' arrangement.  An online platform can also act as a hub if it facilitates or enforces information exchanges between business users of the platform.

An indirect information exchange resulting in collusion can also take place through a shared optimisation algorithm, where commercially sensitive information is aggregated into a pricing tool that is made available by a single IT company and to which various competitors have access.

Restriction of competition by object

Under the previous guidelines only information exchanges relating to future conduct regarding pricing or quantities were listed as a 'by object' restriction and for all other categories of information exchange it was necessary to assess the impact on competition in the relevant market. Under the new Guidelines the definition of an information exchange that qualifies as a 'by object' restriction is much broader. An information exchange will be considered a restriction of competition by object where "the information is commercially sensitive and the exchange is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market".

Whereas the Guidelines make it clear that the exchange of information relating to future conduct on prices or quantities are particularly likely to restrict competition 'by object', other examples listed include the exchange of information around current pricing, current capacity, current commercial strategy and current demand.

In line with the CJEU's move away from a formalistic approach to the analysis of 'by object' restrictions, the Guidelines recognise that any arguments put forward by the parties that the exchange is pro-competitive should be taken into account, provided that such pro-competitive effects are demonstrated, relevant and related to the information exchange in question and are sufficiently significant to justify a reasonable doubt as to whether the exchange causes a sufficient degree of harm to competition.  In that case a full assessment of the effects of the information exchange will be necessary in order to assess whether it constitutes a restriction of competition by effect.

Practical measures to reduce the risk of competition law infringements

The Guidelines set out a range of measures undertakings can take in order to minimise the risk of competition law infringement from information exchanges.

• Clean teams and trustees are typically used in the context of M&A but can also be used when implementing other types of horizontal cooperation agreements, in order to ensure that commercially sensitive information provided for the purpose of that cooperation is exchanged on a need-to-know basis only and in an aggregated form.
• When participating in reciprocal data-sharing arrangements such as a data pool, undertakings should only have access to their own information and to the final, aggregated information of other participants.  The data pool should be set up in such a way that participants are unable to access the commercially sensitive information of individual participants and should be managed by an independent third party that is subject to strict confidentiality rules.
• Prior to meeting with competitors an agenda setting out the purpose of the meeting or call should be available to ensure that any risks around the exchange of commercially sensitive information are identified in advance.  Participants should stick to the approved agenda and it may also be advisable to have a competition lawyer present to ensure discussions do not stray into areas they should not. Where discussions do stray into an anti-competitive exchange it will be important for undertakings to distance themselves from such an exchange, by making it clear that they cannot participate in such discussions and asking for the subject to be changed.  If necessary they should leave the meeting and ask for their objections and departure to be recorded in the minutes and/or record this in their own notes.
• Before disclosing commercially sensitive information in public, undertakings should ask themselves  whether the information serves the legitimate purpose intended and whether the level of detail of the disclosure is necessary.  The public disclosure of planned commercial conduct relating to future pricing and quantities reduces strategic uncertainty in the market and may result in collusive outcomes.  Undertakings should also avoid public announcements on strategic conduct that is dependent on the actions of their competitors.  Where competitors are making such public announcements revealing commercially sensitive information of other undertakings, those undertakings should also take steps to publicly distance themselves from the announcement.

Practical examples

Finally, the Guidelines also contain a number of useful practical worked examples that have been updated in order to provide guidance around new types of collaboration such as algorithms, data sharing, benchmarking and public announcements.