Information exchange
under Article 101 TFEU
Cyril Ritter, DG COMP, Unit A1
Amsterdam, 29 January 2015
Article 101 TFEU
• Agreements
• Concerted practices
• Decisions of association of undertakings
• By object
• By effect
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Concerted practices
• Type 1 (e.g. Polypropylene)
 Evidence of communication (intelligent adaptation = OK)
 No evidence of conduct
 Legal test:
‒ "Influence or disclose" (Sugar)
‒ "Substantially reduce uncertainty" (Cement)
 Anic presumption (never rebutted so far; see Solvay)
‒ Information presumed taken into account
‒ Causal link presumed
• Type 2 (e.g. Woodpulp)
 No evidence of communication
 Evidence of conduct
 "No other plausible explanation"
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Type 1 concerted practices
(i.e. evidence of communication)
Key definitions in the case-law:
•
Dyestuffs para 64: "coordination which, without having reached the stage where an agreement properly
so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of
competition"
•
Sugar para 174: Article 101 "strictly precludes any direct or indirect contact between such operators, the
object or effect whereof is either to influence the conduct on the market of an actual or potential
competitor or to disclose to such a competitor the course of conduct which they themselves have
decided to adopt or contemplate adopting on the market"
•
Polypropylene (Anic) paras 118-121: "a concerted practice implies, besides undertakings' concerting
together, conduct on the market pursuant to those collusive practices, and a relationship of cause and
effect between the two. … Subject to proof to the contrary, which it is for the economic operators
concerned to adduce, there must be a presumption that the undertakings participating in concerting
arrangements and remaining active on the market take account of the information exchanged with their
competitors when determining their conduct on that market, particularly when they concert together on a
regular basis over a long period …"
•
"Removing uncertainty", "lessening uncertainty", "reducing uncertainty", "substantially reducing uncertainty": Woodpulp para 64; John Deere para 90; Cement para 1852; Asnef para 51; T-Mobile para 35
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Type 2 concerted practices
(evidence of conduct/"only plausible explanation")
Key definitions in the case-law:
•
Dyestuffs paras 65-66: "By its very nature, then, a concerted practice does not have all the elements of a
contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the
participants. Although parallel behaviour may not by itself be identified with a concerted practice, it may
however amount to strong evidence of such a practice if it leads to conditions of competition which do not
correspond to the normal conditions of the market …"
•
Sugar para 301: "it is necessary to consider whether the conduct which the Commission alleges … can
only reasonably be explained by the existence of a concerted action"
•
CRAM and Rheinzink para 16: "it is sufficient for the applicants to prove circumstances which cast the
facts established by the Commission in a different light and which thus allow another explanation of the
facts to be substituted for the one adopted by the contested decision"
•
Tournier para 24: a concerted practice "cannot be presumed where the parallel behaviour can be
accounted for by reasons other than the existence of concerted action"
•
Woodpulp para 71: "parallel conduct cannot be regarded as furnishing proof of concertation
unless concertation constitutes the only plausible explanation for such conduct"
•
CISAC para 161: the Commission has the burden of showing that the adduced explanation is implausible
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Case study on both types of CPs: Woodpulp
There were two aspects in Woodpulp
• Type 1 CP, i.e. evidence of communication
 Commission's theory of harm: signalling through the press
 Annulled because not through the press, only to customers
‒ Paras. 64 together with 87
• Type 2 CP, i.e. evidence of conduct
 Commission's TOH: "no other plausible explanation"
 Annulled because there was another plausible explanation
‒ Para. 126
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Type 1 concerted practices
(i.e. evidence of communication): key factors
• Nature of the information
• "Commercially sensitive" = significant enough?
• Public/non-public (see TACA, John Deere, but HG paras. 92-93)
• About the past/about the future
• Structured (very few EU cases)/unstructured
• Public/private exchange
• One-way/two-way (Cement, Tate & Lyle, T-Mobile)
• Standalone/in combination with other conduct
• By object/by effect
• Cartel?
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Example #1: John Deere (1998)
• Commercially sensitive information about the past
• Structured
• Private
• Standalone
• By effect
 Market characteristics
 Characteristics of the information:
‒ age
‒ frequency
‒ level of aggregation
• Not a cartel
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Example #2: T-Mobile (2009)
• Commercially sensitive information about the future
• Unstructured
• Private
• Standalone
• By object
 One meeting enough
 One-way communication enough
• What's the difference with a cartel? Not much
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Example #3: Bananas (2013)
• Commercially sensitive information
 mostly about the future
 not public
• Unstructured, private, standalone
• By object, regardless of
 Regulatory framework
 Market structure
• Cartel: yes!
 Leniency
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Example #4: Signalling
• Unstructured, standalone
• Advance price announcements
• Not firm/not immediate
• Public exchange, i.e. customers get the info as well
Assessment:
• Not an "only plausible explanation" case
• By object? Horizontal guidelines paras. 63 and 74
• Intentions?
• Distancing?
• Article 101(3) benefits?
• Precedents: ATP (FTC 1993), Mobiles (ACM 2014)
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Example #5: Hub and spoke
• Information goes from A to B to C
• With vertical element or not – makes a difference
• Examples:
 EU cases: E-books, Bananas
 UK cases: Dairy, Replica kit, Hasbro Toys, Private Schools
• Different approaches:
 check "state of mind" and "use of the information" as in the UK
case-law
 apply the standard case-law on "single and continuous
infringement" ("awareness")
 Apply the AC Treuhand case-law
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Key sources
1. Horizontal Guidelines 2010
2. Maritime Guidelines (2008-2013)
3. OECD paper on unilateral announcements (2012)
4. OECD paper on information exchange (2010)
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Questions?
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Backup slides
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Concerted practices: several cycles over
the last 40 years
• 1970s/early 1980s: weak investigative tools, several CP
cases (Dyestuffs, Sugar, Zinc, Woodpulp)
• 1980s/early 2000s: better investigative tools, more
straightforward "agreement" cases (starting with PVC,
LDPE, PP, etc, and even more so from the 1996
Leniency Notice)
• Early 2000s until now: trend towards less straightforward
collusion, i.e. more CP cases (Water management
products, Bananas, Container shipping, and more)
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Concerted practices
compared to agreements
CPs and agreements are similar:
• object/effect
• vertical/horizontal
• 101(3)
• "Agreements and CPs "are intended to catch forms of collusion having the
same nature and are only distinguishable from each other by their intensity
and the forms in which they manifest themselves". Is that really true?
CPs and agreements are different:
• 101(2)
• standard of proof
• the Anic presumption is rebuttable
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Concerted practices = cartels?
The "cartel" label has serious consequences
• No Article 9
• Immunity/leniency
• Settlement
• Procedural consequences (see Best Practices)
Only some CPs are cartels: i.e. only if
• Horizontal
• By object
• Secret
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