The Exchange Of Information Between Competitors And The Antitrust Rules

The exchange of information between market competitors has been analyzed from multiple economic perspectives. Taking into account the competition policy and its antitrust rules it is important that the exchange is evaluated exactly by the people who participate in discussions and meetings, because there is a real danger that the exchange of economic information might turn into a cartel. Thus, companies represented at meetings where such discussions take place are exposed to serious sanctions from the competition authorities, which can affect not only their commercial reputation but also the solidity of their market position. Cartels represent illegal agreements between undertakings and are one of the most pernicious anti-competitive practices, being targeted by competition authorities around the world. They create allocation inefficiency and reduce companies’ incentives to provide new or better products and services at competitive prices. The companies involved in a cartel are sanctioned in all European jurisdictions with fines up to 10% of their turnovers. The information exchanged may consist in future prices or future quantities, individual data about costs and demand, statistical data, aggregated data. The analysis of the competition risks over the collusive potential of information exchanged has to be done on a case by case basis and the undertakings should take into account factors like the market’s concentration degree, the elasticity of the demand on the market, the age of information exchanged, the public/non-public character of the data and the frequency of the information exchange. Sometimes it is difficult to draw a clear line between the legitimate exchanges of information on the market and the illegitimate exchanges. This paper analyzes the good practices in the field, as well as concrete examples of information exchanges to be avoided by companies, based on the enforcement activities of the European Commission and of the Romanian Competition Authority. The impact of COVID-19 outbreak over the antitrust rules on exchange of information is tackled in the paper as well, as unprecedented approaches are put into practice by the European Commission. The paper concludes with practical recommendations for the business environment, presenting the do’s and don’ts framework in a concise manner. Compliance with the antitrust rules regarding the exchange of information is a need for most of the undertakings, regardless of size, especially for those that are part of trade associations and / or professional organisations.