A Counterfactual on Information Sharing: The Commission’s Horizontal Guidelines 2011 Applied to the Leading Cases

Abstract

For the first time, the European Commission's Horizontal Guidelines of 2011 contain a section exclusively dedicated to the competition law analysis of 'pure' information exchanges, i.e., information exchanges that do not underpin any other anti-competitive behaviour. By way of a counterfactual analysis, this article aims at clarifying whether the Guidelines merely codify the Court of Justice's quite controversial case law in this area, or whether and to what extent they introduce a more refined - and economics-based - approach to the assessment of information sharing. For this purpose, the Guidelines' framework of analysis is set out before applying it to four leading cases on information sharing: John Deere, Asnef-Equifax, T-Mobile Netherlands, and most recently , Dole. It will be seen that the Guidelines try to strike a balance between 'just enough economics' and 'just enough legal certainty'. They limit the finding of a restriction of competition by object to a very narrow set of cases and want to provide companies in the internal market with incentives to share those kinds of information that will indeed enhance efficiencies and ultimately benefit consumers.