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St. Martin Conference 2009 Brno Information Exchange Martijn Rijke 12 November 2009 Nederlandse Mededingingsautoriteit 1 Definitions 1. Information exchange as a monitoring mechanism of an antitrust violation (e.g. price fixing, market sharing etc) (past) 2. Information exchange as a violation of the antitrust rules in themselves (past) 3. Information exchanges as a violation of the antitrust rules in themselves (future) The focus of this presentation is on (2) . Nederlandse 2 Competition Act (CA): Article 6 -Article 6 CA is based on Article 81 EC -NMa Guidelines on Cooperation between undertakings (2008) Nederlandse 3 NMa Guidelines on Cooperation between Undertakings (2008) Based on standard Case law ECJ, CFI and decisional practice EC and NMa UK Tractor exchange, Amino acids, Wirtschaftsvereinigung Stahl, BicycleCase Relevant factors Market structure (concentration rate, nature of the product, degree of product differentiation) Nature and type of the information (pricing, sales, customers, details, aggregate) Period and frequency of exchange Source and destination (public/private=only between undertakings concerned) Nederlandse 4 Bicycle case (1615): facts (1) SOM-F established in 1998 by 9 participants, including 5 bike manufacturers. Goal SOM-F; collect market data about bicycle trade business & archive historical data New participants had to be approved and need to pay admission fee. SOM-F cooperated with Marketing research agency GFk. Each of the participants would contribute in the expenses of SOM-F. GFk formed a panel of +/- 150 bicycle dealers. Data would consist of non anonymous brand, type, color, market share and average selling prices of the price. The non-historic (6-8 weeks) would be updated every 2 months Nederlandse 5 Bicycle case (1615) structure (2) 5 Bicycle Manufacturers 4 Other participants SOM-F (The foundation) GFk (Market research Agency) Research panel (+/- 150 retailers) Nederlandse 6 Bicycle-Case (1615) (3) SO: Infringement of Article 6 CA, because: (i) Bicycle market = Oligopoly (information exchanged concerns 80% of the market), barriers to entry, symmetry in costs (identical suppliers and collective labour agreement) (ii) Recent (non-historic) data (6-8 weeks) (iii) Accurate (price, type, colour, brand, market share) and reliable (a representative sample) Hidden competition between bicycle-producers was said to be restricted. Nederlandse 7 Bicycle-Case (1615) (4) Decision -Information exchange as seperate infringement was in the end abandoned, because of the source of the information exchanged between the parties. No foreclosure of non-member competitors, because -(1) The information was also individually accessible, albeit against higher costs, and: -(2) It was questionable whether there really were substantial barriers to entry, because non-members managed to compete successfully on the market. Legal and economic approach Nederlandse 8 Information exchange as evidence of collusive agreement Yes, according to CA and Art. 81 EC See inter alia Mobile Operators and Betonmortelcentrales Nederlandse 9 Information exchange restriction by object? Yes, under circumstances, for instance when it can be excluded that efficiencies are achieved (Woodpulp) Most likely for category (3) Nederlandse 10