Information exchanges between competitors in the EU

lessons from a recent case in Spain

Resumen

Unlike explicit cartel agreements, the exchange of commercially sensitive information between competitors is a very complex and controversial subject within the European Competition Law. This is largely because this type of practice can produce not only anticompetitive but also procompetitive effects. Thus, a thorough assessment of its restrictive nature on competition requires a case-by-case examination, including the characteristics of the market, the nature of the information and how this one is exchanged within the specific market context, as well as  its potential beneficial effects. In addition, any claim on the existence of a negative harmful impact on the market should be tested against empirical evidence. The recent experience in Spain suggests that the Competition Authority has not conducted such an analysis or followed an appropriate methodology, since they only identified a set of factors characterizing the exchanges in order to reach its conclusions. This lack of rigor could generate unfair decisions and lead to legal uncertainty, discouraging firms from engaging in information exchanges that may be potentially beneficial for consumers and for the market overall.