Wednesday, April 4, 2012
Posted by D. Daniel Sokol
Florian Wagner-von Papp, University College London Faculty of Laws analyzes Information Exchange Agreements.
The exchange of information among competitors has been debated ever since the beginnings of Antitrust Law, but manages to stay a 'hot topic' - from Eddy's 'New Competition' in 1912 to the B2B platform discussions in the early 2000s and the recent guidance on information exchange in the European Commission's Guidelines on Horizontal Co-operation Agreements.
This chapter describes the European Union (EU) law on information exchange and critically analyzes the Guidelines' approach. The most frequent criticism against the Guidelines is that they provide little guidance: Practically all information exchange is suspect, but in many cases it may also have positive effects. To a large extent, this criticism fails the mark: The Guidelines carefully discuss the factors that are to be considered in assessing the anti-competitive and (to a lesser extent) the pro-competitive aspects of information exchange. Even though they do not provide safe harbors, they allow an assessment whether the exchange is 'more' or 'less' problematic. The overall balancing of anti- and pro-competitive aspects is necessarily a messy 'case-by-case' analysis. Those criticizing the Guidelines in this respect should try and come up with generalized safe harbors that do not also open the door to potentially harmful substitutes for cartels.
What is to be deplored, however, is that the Guidelines do not give any guidance for those cases, in which the messy overall balancing could have been avoided altogether. Herbert Hovenkamp rightly states that the balancing of pro- and anti-competitive effects of information exchange is practically impossible, and that one should instead focus on whether the pro-competitive aspects can be achieved by less restrictive means. This may mean, for example, that 'Chinese Walls' have to be erected where competitors enter into a supply-relationship with each other, or that 'Clean Teams' have to be formed when conducting due diligence in the run-up to a merger. While the Guidelines mention the 'indispensability' requirement in EU law briefly in two paragraphs, the failure to define detailed standards for less restrictive means in these cases is a lost opportunity.
The chapter also discusses the concepts of agreement and concerted practice under Article 101 of the Treaty on the Functioning of the EU (TFEU), which lie at the heart of the second category of information exchanges (exemplified by Wood Pulp II). This 'legalistic' criterion has long been under attack as focusing excessively on 'communication' between the competitors, and thus the wrong question (Turner-Posner debate in the 1960s, a criticism that is currently gaining momentum, e.g. by Louis Kaplow). In brief, the criticism is that the economic effects of tacit collusion (interdependent conscious parallelism) are equally bad as those of explicit collusion. While I reject the more extreme versions of completely substituting an effects-based test for any communication requirement, at least for the concept of competition that underlies EU law, I agree that the current focus on 'reciprocal communication' is too narrow. Surprisingly, the Guidelines proclaim that Article 101 TFEU can catch some unilateral communications as well. From a policy point of view, this is a laudable effort. It would, however, require legislative action, either on the EU level or, more likely, on the Member States' level.