The Exchange of Commercially Sensitive Information. Some legal and economic issues

Transcription

1 The Exchange of Commercially Sensitive Information Some legal and economic issues ACLE Law & Economics Seminar 13 February 2006 Rein Wesseling 1/16/2014 4:36:36 PM

2 Queries Detailed and specific market data may be bought from market data information provider. The same information may not be provided by a trade association. Detailed information on prices and products of (all) competitors may be obtained from customers (or suppliers). Provision of the same type of information bilaterally even if limited to one company is per se prohibited. Buying products from one or more competitors is allowed. Providing information to the competitor (customer) on price and product is inherent and precedes the transaction. Exchanging prices without an intention to buy is per se prohibited. Due diligence processes are lawful. Obtaining specific information about a competitor in such a situation is allowed (inherent and limitations in use of information). Unilateral price (increase) announcements are lawful, also from market leaders and companies with a dominant position on the relevant market (press, trade journal, price journals ). 1

3 Program 1. Overview of the EC (case) law 2. Specific area s i. Benchmarking / market data ii. Bi- or multilateral exchange of views on market developments iii. Sales to competitors (and networks of such sales) iv. Shareholding, interlocking directorate 3. Topics for discussion 2

4 1. Overview of the EC case law Commercially sensitive information: no specific definition Individual, secret, related to business (sales volumes, sales prices, customers, productions costs, commercial strategy) Distinction between information on (current / future) sales prices (in case law often related to further agreements / concerted practices) other commercially sensitive information 3

5 1. Overview of the EC case law (i) Non-sales price data UK Tractor exchange precedent (very specific, see e.g. CFI in Stahl ) not on sales prices sensitive recent frequent individual small group of participants / exclusion oligopolistic market mature product / stable market meetings to discuss info data exchange to reveal position and strategy (!) 4

6 1.Overview of the EC case law (i) Non-sales price data Deere CFI First to prohibit information exchange system not directly concerning sales prices. As the applicants correctly argue, on a truly competitive market transparency between traders is in principle likely to lead to the intensification of competition between suppliers, since in such a situation, the fact that a trader takes into account information made available to him in order to adjust his conduct on the market is not likely, having regard to the atomized nature of the supply, to reduce or remove for the other traders any uncertainty about the foreseeable nature of its competitors' conduct. On the other hand, the Court considers that, as the Commission argues this time, general use, as between main suppliers and, contrary to the applicant' s contention, to their sole benefit and consequently to the exclusion of the other suppliers and of consumers, of exchanges of precise information at short intervals, identifying registered vehicles and the place of their registration is, on a highly concentrated oligopolistic market such as the market in question and on which competition is as a result already greatly reduced and exchange of information facilitated, likely to impair substantially the competition which exists between traders. In such circumstances, the sharing, on a regular and frequent basis, of information concerning the operation of the market has the effect of periodically revealing to all the competitors the market positions and strategies of the various individual competitors. (Para. 51) 5

7 1.Overview of the EC case law (ii) Sales prices Suikerunie -- The requirement of independence precludes any direct or indirect contact between companies the object or effect of which is either to influence the conduct the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market. [Query whether this is correct in a purely unilateral situation.] The documents quoted show that the applicants contacted each other and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors. (para. 175) Züchner -- The requirement of independence precludes any direct or indirect contact between companies the object or effect of which is to create conditions of competition on the market which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market share. (para. 14) Ahlström In this case, the communications arise from the price announcements made to users. They constitute in themselves market behaviour which does not lessen each undertaking' s uncertainty as to the future attitude of its competitors. At the time when each undertaking engages in such behaviour, it cannot be sure of the future conduct of the others. (para. 64) 6

8 1.Overview of the EC case law (ii) Sales prices Anic It follows that [ ] a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two. (para. 118) Collusive practices, such as exchange of commercially sensitive information, do not necessarily have an effect on the conduct of the undertakings which participated in them. Evidence required of fact that collusion caused anti-competitive conduct. But little help in practice because subject to proof to the contrary the presumption is that the undertakings do take account of the information exchanged with their competitors when determining their conduct on that market (particularly when they concert together on a regular basis over a long period). And in specific context of single, continuous and complex infringement (Anic) evidence of independent decision-making considered only to be evidence for not putting into effect results of meeting. 7

9 1. Overview of the EC case law When is exchange of sales prices prohibited? When object or effect is to influence competitor or to disclose to it When object or effect is to create conditions on the market not corresponding to normal conditions of the market in question Exchange causing parallel behaviour When is exchange of other commercially sensitive information prohibited? Not where info is general, publicly available, aggregate Effect depends on market circumstances (Tractor Exchange situation as such rare) Sufficient to establish potential appreciable restrictive effect of behaviour Specialist market data services provided by third party are not capable of being caught by Article 81 EC (because not a horizontal agreement, see Wirtschaftsvereinigung Stahl, Commission decision, para. 58 ) 8

10 2. Specific area s (i.) Benchmarking and market data Not decisions or advice, only provision of data Statistical information on sales volumes provided by trade association; allowed unless (potential) appreciable restrictive effect Cost price information; allowed under circumstances (no advice, not specific, publicly available or own representative research) Sales price information; allowed if historic (but then no value), if recent probably not allowed (irrespective of market circumstances) Expected market trends and developments; practically not allowed Awkward distinction between trade association or third party providing service 9

11 2. Specific area s (ii.) Exchange of views on market developments Current approach de facto per se based (on basis of Anic) Increased relevance because of leniency applications Various pending cases 10

12 2. Specific area s (iii.) (Cross) sales to competitors (networks of such sales) No concern in practice it seems Obtaining knowledge about price is inherent in what otherwise may be procompetitive situation Depending on market circumstances (e.g. in homogeneous product market, mature, stable demand, few suppliers) effect is same as agreements to exchange sales prices 11

13 2. Specific area s (iv.) Publication & announcement of price increases No clear precedents Ahlström; on demand of customers in specific situation no infringement When part of a scheme likely to be prohibited per se However also absent scheme there may be anti-competitive effects but absence of agreement facilitating co-ordination in an oligopolistic market? Depends on product, relevance of (non-communicated) discounts. 12

14 2. Specific area s (v.) Shareholdings, JV s & interlocking directorates In concentrated markets not allowed? Chinese walls required. In markets with effective competition? No clear precedents. Supervisory board membership, e.g. because of knowledge of the trade? direct competitor, single product firm, complete overlap activities larger company, various activities (but all in retail), limited overlap 13

15 3. Topics for discussion Basis: taking away uncertainty. But is there uncertainty? does it always take away uncertainty (per se) or is proof required? should evidence of effect on future behaviour be required? does less uncertainty restrict competition per se? Element in detection of deviation from collusive situation more relevant? On the basis of the current case law, is it possible for undertakings to prove that the commercially sensitive information was not taken into account in the decision on pricing? Is exchange of commercially sensitive information between limited number of competitors more restrictive than collective selling which can be allowed? (cf. Commission guidelines commercialisation provides opportunity for exchange of sensitive information, para. 146) 14

16 3. Topics for discussion (ctd.) Where transport costs are high should structural swap arrangements be allowed irrespective of knowledge about customer gained (or even noncompete)? Conversely should absolute exclusion from Article 81 EC scope of (vertical) market data services by third parties be reconsidered? Should potential appreciable effect be sufficient, also where historic data is available or in case of likely net positive effect on competition? Are there situations in which exchange of price lists (or provision of price list to price gazettes like in agricultural sector) should be considered per se compatible with Article 81 EC (e.g. where discounts and rebates are actual competitive parameters)? 15