Transcript Information Exchange

St. Martin Conference 2009 Brno
Information Exchange
Martijn Rijke
12 November 2009
Nederlandse
Mededingingsautoriteit
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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
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Competition Act (CA): Article 6
-Article 6 CA is based on Article 81 EC
-NMa Guidelines on Cooperation between undertakings (2008)
Nederlandse
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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
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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
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Bicycle case (1615) structure
(2)
5 Bicycle Manufacturers
4 Other participants
SOM-F
(The foundation)
GFk
(Market research Agency)
Research panel
(+/- 150 retailers)
Nederlandse
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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
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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
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Information exchange as evidence of collusive agreement
 Yes, according to CA and Art. 81 EC
See inter alia Mobile Operators and Betonmortelcentrales
Nederlandse
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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
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