Information Exchange With Competitors

There are many situations where you may need to share information with your competitors – for example, in the context of research and development agreements, joint commercialization agreements or joint bidding arrangements. Competition laws recognize that the exchange of information between competitors may be beneficial. However, you must be careful that any exchanges of information do not breach competition law and expose the company to significant fines, reputational damage and/or potential private damages actions, in addition to criminal sanctions for individuals.

Competition concerns arise when the information exchanged reduces strategic uncertainty, making it easier for competitors to predict one another’s behaviour and adjust their own. For example, if competitors exchange competitively sensitive information on future prices, this could ultimately lead to price fixing in the market – a form of cartel that is strictly prohibited under competition law. Information is particularly sensitive and more likely to cause concerns when shared, especially if it is nonpublic and relates to strategic commercial decisions, such as current or future pricing, changes in production volumes or product launches.

In practice, assessing what can be legally exchanged is not always easy. Below we set out some ‘first principles’ and practical examples to bear in mind.

• The form of the exchange does not matter. Competitively sensitive information can be exchanged privately (e.g., in a meeting), publicly (via published material) or through a third party, such as a trade association. No written or express agreement is required.
• A single meeting or conversation is enough to break competition law.
• There is no need for bilateral exchanges – one-way communication is enough. The mere attendance at a meeting where a rival discloses its future pricing plans is enough, even if there was no response from another attendee and even where there is no explicit agreement between the attendees.
• The impact on the market is presumed. If you receive unsolicited competitively sensitive information from a competitor – whether in an email or a single meeting – it is presumed that you have accepted and acted on the information in breach of competition law, unless there is a clear statement that the information is not wanted or rejected.
• The fact that – ‘All our competitors are doing the same’ or ‘I did not know that this type of behaviour was illegal’ – is no excuse.
• Proportionality is key. If the information exchange occurs for a procompetitive reason, it may not be problematic. Nonetheless, the amount and type of information exchanged must be proportionate to the procompetitive objective pursued.

What types of information exchanges may be prohibited?

There is no exhaustive or definitive list of the types of information that can or cannot be shared with competitors. However, the table below summarises the sorts of information that carry a higher risk versus a lower risk of breaching competition law. For example, exchanging information regarding current and future business activities carries a higher risk than exchanging historical information.

Practical tips for exchanging information with a competitor

• Always decide your commercial strategy independently.
• Ensure employees are trained on what they can and cannot discuss with competitors.
• At meetings with competitors:
  • Have a preset agenda that (ideally) has been reviewed by a lawyer.
  • Participate only at the formal meeting and avoid informal gatherings before and after the meeting.
  • Ensure someone takes minutes of the meetings.
  • Discuss only noncompetitively sensitive information.
  • If you have concerns that a particular discussion may be infringing competition law, request the discussion to stop, and if it does not, leave immediately and request that the minutes reflect your departure.
  • After the meeting, review the minutes.
• Email communications: If you receive an email with competitively sensitive information, it is important that you distance yourself from the information immediately. Do so by sending an immediate email reply to confirm that you have not read it or acted upon the information and tell the sender to refrain from sending such information ever again. Do not distribute the information further unless it is to notify a lawyer about your concerns.

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