Friday, October 8, 2010
Posted by D. Daniel Sokol
Andreas Reindel (Fordham law) has posted Information Exchanges Among Competitors: The Commission Takes a New Look.
ABSTRACT: The European Commission's draft guidelines on horizontal agreements (the "Draft Guidelines") feature as one of its main innovations a new chapter on information exchanges among competitors. In it the Commission has put forward an analytical framework that should ensure a conceptually sound and consistent assessment of the broad range of diverse situations in which firms exchange information with their rivals.
The Commission document has already triggered strong reactions. One alarmist comment accused the Commission of seeking to drastically expand its enforcement powers, of creating the risk of jail time for potentially benign conduct, and of threatening to chill activities of third parties such as market research companies and journalists with its unprincipled enforcement zeal against information sharing.
Such comments might be designed to scare firms into hiring more lawyers, but they do not provide an accurate assessment of the Draft Guidelines. I believe that the Commission has proposed overall sound analytical principles for a practice that simply cannot be analyzed with the help of bright-line legal rules. Of course there are aspects in which the Draft Guidelines could and should be improved. But if the Guidelines' principles are followed in actual enforcement practice (an important "if," as I will explain below) the proposed approach should allow firms and their counsel to reasonably accurately assess the risks of information sharing, and should generally lead to case outcomes consistent with the Commission's view of EU competition law as a consumer-welfare prescription. On both counts the Draft Guidelines do a better job than existing case law and are therefore an improvement over the current state of affairs.