The Chameleon in the Room: Transatlantic Views on Information Exchange in the Field of Competition Law

Abstract

Information exchanges between competitors are not an obvious candidate to be the subject of a comparative exercise between US antitrust law and EU competition law, at least to the extent that one seeks dissimilarities rather than commonalities. Unlike single-firm conduct or even merger control, information exchange is part of a broad area of transatlantic convergence in competition matters, which seldom yields enough disparities to fuel a contribution in the field of comparative competition law. Nevertheless, this Paper purports to unearth such disparities, which we believe are a manifestation of a larger and deeper disagreement on the nature of information exchanges: while U.S. antitrust approaches information sharing as being either neutral or beneficial to competition, EU competition law displays an almost ingrained mistrust towards information exchange as the source of potential or actual anticompetitive effects. The problem with the latter view is that information exchange – like the chameleon we borrowed for our title – may assume an extreme variety of tones that competition authorities should be able to distinguish, but in practice do not always do. The changing tones of information sharing may and sometimes do have an anticompetitive effect, but associating the latter with former is prone to create false positives (type-I errors). Within certain limits set by antitrust, the diversity of content, form and context surrounding information exchange is in itself a reflection of the attempt by rational actors to collect data dispersed in the market . Such diversity includes information exchanged directly among competitors or indirectly via a common agency (frequently a trade association) or a third party (market research organisations, retailers, suppliers); information exchanged outside the context of any agreement, as an ancillary element of a broader horizontal agreement or even the very object of an agreement (stand-alone infringement); and the purpose presiding over the information exchange – as well as the nature of the information itself – can greatly vary from case to case. The combination of these different circumstances provides equally different scenarios, many of them neutral or even pro-competitive from an antitrust perspective. This Papers, therefore, proposes to explore the chameleonic features of information exchange - which perhaps too often (although somehow understandably) are not properly apprehended by Competition Authorities – against the background of a comparative research into EU competition law and U.S. antitrust. The itinerary is divided into five steps, which include the present (I) introduction, (II) the assessment of information exchanges between competitors under EU competition law and (III) U.S. antitrust, followed by (IV) the analysis of the distinctive traits of the competition assessment carried out in both sides of the Atlantic and (V) closing the chapter with some concluding remarks on the topic.