Information exchanges between competitors in the EU

lessons from a recent case in Spain

  • Pedro Posada De la Concha
  • Sergio García de Frutos
Palabras clave: Information Exchanges, Competitors, Competition Authority, Competition, Law

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.

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Biografía del autor/a

Pedro Posada De la Concha

Dr. Posada is Senior Consultant in NERA’s Antitrust and Competition Policy Practice in Madrid and Brussels. He holds a PhD in economics from the University of Warwick in the United Kingdom and has a Postgraduate Diploma in competition law from King’s College at the University of London. During his time at NERA, Dr. Posada has been involved in many competition projects, as well as projects relating to damage estimation, intelectual property and international arbitration. Prior to joining NERA, Dr. Posada worked at CRA International in London, where he conducted applied microeconomic analyses, mainly within the area of competition for various sectors and industries worldwide. Dr. Posada worked previously for the regulator of the electricity and gas markets in the UK and held a position in the Council for Science and Technology in Mexico. He also has experience in research in applied mathematics and astronomy. The opinions expressed herein do not necessarily represent the views of NERA Economic Consulting or any other NERA consultant.

Sergio García de Frutos

Sergio García is an Analyst in NERA’s Antitrust and Competition Policy Practice, recently transferred from the Madrid to the San Francisco office. He holds an MSc from the Toulouse School of Economics and a BA (also in Economics) from Universidad Carlos III of Madrid. He has also completed the Course on Competition Law in the EU and in Spain from “Instituto Español de Estudios Bursátiles”. Since joining NERA, Sergio has been involved in various projects in Spain, mainly in the areas of competition, intellectual property and energy.

Publicado
2013-12-31
Sección
Artículos