The European Court of Justice ("ECJ") has confirmed in a recent case that a single meeting between competitors is sufficient to breach Article 81 of the EC Treaty. Furthermore, where competitors do exchange information, there is a legal presumption that they will take account of this information when operating in the market.
In this case, five mobile network operators based in Holland held a meeting at which they discussed, amongst other matters, the reduction of standard dealer remunerations for post paid subscriptions and the date on which such reductions would take effect. The Dutch Competition Authority found that this constituted an anti-competitive agreement in breach of Dutch and EU competition law and imposed substantial fines on those involved.
Following various appeals, the matter was referred to the ECJ for a ruling on certain aspects of EU competition law. The ECJ ruled as follows:
- an exchange of information between competitors is tainted with an anti-competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating parties. There is no need for any actual anti-competitive effects;
- where the participating parties remain active on the market, they are presumed to take account of the information which has been exchanged. In other words, these parties have to prove to the authorities that they did not use the information in question in order to rebut the presumption; and
- this presumption applies even if the parties only met on one occasion.
The ECJ's findings are extremely significant and highlight the particular dangers in meeting with competitors and/or exchanging information with them. As this case shows, even a single meeting can breach the competition rules and the operation of the presumption places a heavy burden on each participant to show that it did not take account of the information exchanged. It is also worth noting that the Office of Fair Trading is bound to follow EU case law and so this decision is now effectively part of UK competition law.