Competition authorities, such as the European Commission and the Netherlands Authority for Consumers and Markets (“ACM”), are showing an increasingly interest in the exchange of information between companies. This applies to the exchange of information between competitors as well as between non-competing companies, such as suppliers and customers. In both cases such exchange of information may conflict with the cartel prohibition set out in Section 6 of the Mededingingswet (Competition Act) and Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). Competition authorities can impose high penalties on such breaches, including personal penalties, as they did in the banana cartel and the bathroom cartel. This blog addresses the most recent developments and main tips.
Basic assumption
In principle, the exchange of information between companies is not prohibited. Indeed, it is often necessary in a commercial relationship, such as a distribution contract between a producer and a distributor or retailer. Even the exchange of information between competitors is deemed to promote competition and efficiency, in principle. It may, for instance, give companies access to information to which they did not have access in the past (thereby enabling them to improve their performance). It may also enable companies to better anticipate market developments (such as new technologies). The exchange of information may furthermore give rise to efficiency improvements or cost savings, because it allows companies to compare themselves with others (by means of a benchmark) and to avoid certain costs.
Risks
But the exchange of information may also have trade restraining effects. That is the case if information is disclosed on (individual) market strategies of competing companies, which may remove the desired uncertainty about their market conduct. Examples are the exchange of sensitive competitive information (i.e. corporate strategic information) on e.g. prices and customers. That exchange may take place in different manners: directly, via a communal body (such as a trade association) or via a third party (a market research bureau or a supplier/customer). It is apparent from European case law that even the unilateral or incidental disclosure of information may be prohibited. A company that receives sensitive competitive information from a competitor is assumed to have accepted that information and to have adjusted its market conduct, unless it expressly distances itself from that information.
Benchmark
Companies are allowed to compare their performances (benchmarking) and to exchange information for that purpose, provided that that information cannot be traced to individual companies and the information is out of date (older than one year). Companies are also allowed to purchase information from third parties, such as a market research bureau. They may also do so jointly, provided that other competitors are not disadvantaged (for instance because the information is essential in order to operate on the market) and the joint purchase does not involve the channelling of sensitive competitive information. This is apparent from the decision of the Netherlands Competition Authority (“NMa”) regarding the bicycle manufacturers. But companies should be reticent when jointly discussing and processing the results. For instance, no joint conclusions should be drawn regarding the desired price policy.
Commercial cooperation
Companies that work together legitimately, as in the case of distribution, franchise or a joint venture, generally need to exchange information. That is permitted, even if those companies are each other’s competitors. In the latter case it is wise to share only such information as the cooperation requires. The exchange of information may not lead to covert concerted practices or distortion of competition (such as an agreement on the sales price or the allocation of customers). To avoid all risk, it could be wise to draw up a confidentiality clause or a cooperation protocol, to ensure that the information may not be used for other purposes.
Hub and spoke
Competitors also may not exchange sensitive competitive information via third parties. A case in point is price information of a competitor that is shared via a customer or supplier, such as when a supplier calls its distributors to inquire about the proposed sales prices of other distributors (or vice versa). That may also remove the uncertainty about market conduct between competitors and is known as a “hub and spoke” cartel. It is a more subtle and effective form of collusion that does not involve direct contacts between competitors. From a legal perspective this cooperation is more complex than the “classic cartels”, in which direct price agreements are made. In principle, contacts between a supplier and a distributor are permitted. The disclosure of price information may also form part of customary (purchase) negotiations (“the peddling of quotations”) and may in fact stimulate competition. It is therefore not always easy to draw the line between the collection of market information and concerted practices.
It is apparent from the Toys, Replica Kit and Tesco cases in the United Kingdom that the companies’ knowledge and the context are always decisive in determining whether a prohibited hub and spoke cartel exists. It must be sufficiently plausible that party A has provided party B with information with a view to that information being passed on to party C (a competitor of party B). It must also be an established fact that party B passed on the information and that party C was aware of the background. It must furthermore be established that party C actually used the information. This is a relatively strict test. It is not yet clear whether the European Commission and ACM will follow the same line as the British supervisory authority.
Signalling
A relatively new phenomenon is “signalling”. In principle, companies are permitted to make public statements on their policy or market strategy (e.g. via the press or professional journals). But the situation is more complex if competitors respond and their statements form part of a possible strategy aimed at concerted practices. An example is ACM’s decision on the public statements of mobile operators. Signalling is also complex from a legal perspective. It follows from both the law and case law that (reciprocal) contacts between companies that may influence market conduct is required in order for a cartel prohibition to be breached. The question is whether the prohibition can apply if no actual coordination or concerted practices have taken place. It is also unclear as yet exactly to what information this can apply and what is meant by public statements. It is furthermore not yet clear whether and how competitors are expected to distance themselves from public statements. The European Commission is currently investigating signalling in container liner shipping. The outcome of that investigation may clarify the situation (see also our earlier blog on this issue).
Price indexes
Supervisory authorities have recently also shown a great deal of interest in price indexes and price listings. Fines are increasingly being imposed on companies that attempt to manipulate such indexes or listings. The fines imposed by the European Commission on several banks for manipulating interbank interest rates (such as Libor and Euribor) are a case in point. Apparently, a European investigation is pending into the manipulation of price indexes in the oil and bio fuel sector. Also ACM is currently investigating several price indexes, including those in the agricultural sector. Whether competition rules have been breached will depend, among other things, on the structure of the price index, the information exchanged and in particular the purpose or effect of the price index.
Tips
To avoid the risk of breach of the cartel prohibition and of fines being imposed, it is advisable to proceed with caution when disclosing sensitive competitive information to competitors (also via third parties). Information should be disclosed only insofar as necessary and safeguards should be put in place to avoid prohibited exchange of information. Companies should immediately and expressly distance themselves from sensitive competitive information that they unnecessarily receive from a competitor (also via third parties). If possible, that should be recorded in writing (in any event internally).
More information on this subject can be found in the presentation given by Martijn van de Hel for the Dutch Association of Company Lawyers.
