The effective flow of information in the market is arguably an important factor for boosting healthy competition and may ultimately lead to a higher level of consumer welfare through efficiency gains and pro-competitive transparency. However, the benefits to an undertaking may reach a level where there is a risk to competition. Competition authorities have grown aware of this risk and increased their activities against alleged anti-competitive information exchanges, including more amorphous exchanges.
Nowadays, undertakings share information at conferences, within the framework of trade associations, during customer visits and on a daily basis via social media and other internet sites which enable simple and prompt access to data. Market participants have occasionally fallen behind in identifying the risks of such day-to-day behaviour, unknowingly walking head on into protracted and costly competition procedures and – in the worst cases – significant fines.
A recent Hungarian Competition Authority (GVH) decision is an example of an undertaking's worst-case scenario. In January 2016 the Hungarian media reported the Ft4 billion (€12.7 million) fine imposed on the Hungarian Banking Association (HBA) for the anti-competitive exchange of information. The fine is one of the highest in the history of the GVH and the highest ever imposed on an association in Hungary.
In light of this, this update provides an insight into the nature of anti-competitive information exchanges.
Anti-competitive information exchanges
The day-to-day functioning of businesses requires the exchange of information. However, if such exchange enables market participants to restrict competition, it may attract the authorities' attention.
In the HBA case the participants had established a database for the purpose of exchanging information, which was not only accepted, but also utilised and financially supported by state agencies. The GVH established that the respective practice of the participants constituted an information cartel in a stand-alone case of anti-competitive information exchange.
The GVH highlighted that the case involved the exchange of strategically relevant information. Similarly, the European Commission Horizontal Guidelines provide that if an undertaking gains knowledge of its competitors' strategies from an exchange, it may have a highly distortive effect on competition.
The result of an anti-competitive information exchange is an artificial transparency in the market. Such transparency may enable concerted anti-competitive practices among competitors or the monitoring of an already established concerted practice and the market itself. Such an exchange may lead to anti-competitive foreclosure of the market in case the benefits derived from the transparency allow for such activity by the market participants.
Identifying anti-competitive information exchanges
Whenever a business exchanges or unilaterally shares information with its competitor or business partners, there are a number of circumstances to consider in order to identify whether the exchanged information falls within the boundaries of a pro-competitive or anti-competitive exchange.
Only information with certain attributes can trigger restrictive effects, such as trade secrets. However, this does not mean that information not constituting a trade secret may be exchanged without consequence. For example, even though the information in the HBA database was partially publicly accessible, the GVH concluded that the information was strategically relevant; moreover, the information was organised in a manner which could enable market participants to restrict competition.
The following information attributes are relevant when assessing potential risks:
- Strategic information – for example, data relating to future prices, quantities, customer lists or capacities carries a high possibility of coordination, while the risks of a sole market forecast may be negligible.
- Age of data – the exchange of information relating to future business plans and conduct will likely involve a high risk. Historical information carries a lower risk factor; however, it may still give rise to possible anti-competitive concerns. A delayed data exchange may also prove to be unlawful, as it may enable or enhance the monitoring of competitors' behaviour.
- Quantity and accessibility – in the HBA case the database was considered to be a collection of strategically relevant information which was easily accessible to market participants, thereby significantly enhancing the chances of coordination.
- Exchange scheme – a direct information exchange between market players may pose a serious risk. However, an indirect information exchange has similar anti-competitive potential. Therefore, the fact that the information has been exchanged indirectly (eg, within the framework of an association) is not a valid bail-out in the eye of the authorities.
- Market structure – establishing, monitoring and maintaining an unlawful information exchange, tacit collusion or concerted practice is easier in an oligopolistic market. A few players may easily coordinate with each other; therefore, any kind of information exchange in markets with a small number of players – or where the parties involved in the exchange cover a sufficiently large part of the market – has a high risk of qualifying as anti-competitive.
- Frequency and aggregated versus individualised data – in general, frequent exchanges of individualised data increase the risk of a collusive outcome.
The European Commission and the European Court of Justice (ECJ) lead enforcement activities in the European Union relating to anti-competitive exchanges. Early on, the ECJ faced issues regarding the exchange of information within the framework of trade associations. In Deere v Commission the ECJ concluded that an exchange may qualify as anti-competitive even when it lacks material information on crucial factors (eg, pricing), merely on the basis that uncertainty is reduced or removed. Therefore, a vehicle registration database containing – for example – the number of registered vehicles, from which competitors' sales could be ascertained, may be the basis of an infringement.
The ECJ later clarified that a direct effect on consumer prices is not necessary to establish an infringement. Moreover, even a single meeting between companies may constitute a concerted practice in breach of EU competition law. An exchange of information between competitors is anti-competitive if it could remove uncertainties around the competitors' intentions. An actual negative effect on competition or a direct link between the concerted practice and consumer prices is unnecessary.
Following today's trends, even raising a topic in a Facebook group where undertakings (eg, businesspersons) share their experiences or opinions may qualify as an infringement in certain circumstances. If the comment section of the Facebook group reduces uncertainty in the market, members could be held liable. An intangible conversation during the interval of an association meeting may similarly qualify.
In its infamous 'banana cartel' decision the European Commission found that the undertakings had participated in a concerted practice by coordinating banana prices. The undertakings had conducted a bilateral exchange of information regarding price-setting factors (eg, stock sizes), price trends and indications of future prices – all strategically relevant information. This scheme was conducted on a weekly basis, as the characteristics of the banana market meant that prices were set on a weekly basis. Such pre-pricing communications were designed to reduce uncertainty in the market. Following the discussions, the undertakings had proceeded to set the prices, which they then exchanged with each other – enabling them to monitor the proper functioning of the concerted practice. The undertakings argued that such discussions were about general factors (eg, weather conditions), but the European Commission and the ECJ were unconvinced. Accordingly, even an undertaking's social media update may attract the competition authorities if it provides information about its capacities or indicates its business plans.
Evidently, even activities in which market participants may regularly engage and which they regard as lawful may enable a reduction of strategical uncertainty in the market. Undertakings must ensure that their employees are aware of these risks, and that they have effective compliance programmes in place, in order to minimise the risk of worst-case scenario decisions such as that faced by the HBA.
For further information on this topic please contact Anna Turi or András Nagy at Schoenherr by telephone (+36 1 8700 700) or email (email@example.com or firstname.lastname@example.org). The Schoenherr website can be accessed at www.schoenherr.eu.
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