Growing antitrust risk of information exchanges

In a recent judgment on the exchange of information between competitors, the Court of Justice of the European Union (ECJ) issued several findings that, unfortunately, contribute to greater uncertainty and therefore to a growing antitrust risk for undertakings (C-298/22 - Banco BPN).

It is long established that the exchange of information itself (referred to by the ECJ as a ‘standalone exchange of information’) can have the adverse effect of violating the cartel prohibition. This means that there is no need for an additional anticompetitive agreement, e.g. to actually coordinate prices on the basis of the information exchanged. In its recent judgment the ECJ found that such a standalone exchange of information may also constitute a restriction of competition by object. In the case of a by object restriction, it is not necessary to prove that the exchange of information had an adverse effect on competition. As a result, it has become significantly easier for competition authorities to find an infringement of competition law.

Unfortunately, the ECJ’s judgment lacks clear criteria for determining in which cases a standalone exchange of information may constitute a restriction of competition by object. The ECJ reiterated that even a single exchange of strategic information can constitute such a restriction. At the same time, the ECJ found that the question whether information is considered ‘strategic’ cannot be evaluated by using established criteria (such as whether the data is historical or publicly available) but must instead be evaluated on a case-by-case basis.

The context of the judgment is that, in 2019, the Portuguese competition authority imposed fines on several credit institutions. These institutions had participated in an exchange of information regarding current and future conditions applicable to transactions, in particular credit spreads and risk variables, as well as individual production figures (e.g. home loan offers or consumer credit offers) over a period of more than ten years between 2002 and 2013.

In which cases might the judgment be relevant?

As the judgment addresses the exchange of competitively relevant information between competitors, it must be considered in various future scenarios, especially in:

• Corporate acquisitions and other M&A-related issues (such as due diligence)
• Cooperative ventures between competitors (such as purchasing, R&D, specialisation or joint marketing)
• Collaboration in associations and at industry conferences or trade fairs

Practical implications and tips

The judgment is notable because it further blurs the already difficult line between lawful and unlawful exchanges of information by focusing (too much) on a case-by-case analysis. It also fails to establish practical standards for clearly distinguishing between strategic and non-strategic information exchanges.

Moreover, the judgment also makes it clear that there is very limited scope – if any – for justifying an impermissible exchange of information. Companies therefore need to be even more careful when exchanging information in the future. The following recommendations may assist in this regard:

• Continue to raise employee awareness through training and by providing concise, and understandable guidelines
• Adopt a restrictive approach to disclosing information, ensuring it is shared strictly on a “need to know” basis
• Implement or check the validity of internal processes and measures, such as rights/roles models or firewalls
• In situations of doubt, provide clear instructions to seek internal or external legal advice before disclosing any information

If you have any questions, please feel free to contact us.