Abuses of Information and Informational Remedies : Rethinking Exchange of Information Under Competition Law?

Traditionally, the way competition law has viewed the exchange or sharing of information among competing firms, has been to some extent mainly negative, at least from the supply side. Present market conditions, an excessively transparent market, where operators exchange detailed and (prospect) commercially sensitive data on a regular basis, can amount to a practice facilitating collusion, or be itself an anti-competitive agreement violating Article 101 TFEU. Interestingly, though, while a great deal of literature and case-law exists that reflects on the difficult relationship between the exchange of information and Article 101 (collusive scenarios and oligopolistic interdependence), the relationship between the exchange of information and Article 102 is a much less scrutinised issue. A closer look at the Article 102 case-law suggests a less strict and skeptical approach towards exchange of information, compared to that on Article 101: it is the lack of information exchange or the misuse of information by dominant firms that are deemed anticompetitive and abusive. At the same time, this closer look reveals that many Article 102 cases are adjudicated via remedies imposing an exchange of information or a duty to disclose information. Such behavioural remedies resemble much – as regards the rationale of intervention, the institutional resources employed and the powers exercised – to traditional regulation: it is therefore suggested to call them ‘para-regulatory’, to distinguish them from pure, traditional regulatory interventions. In such a scenario, a risk may arise of conflicts with existing information-based regulation (e.g. access and disclosure regulation), leading to legal uncertainty, conflict of decisions and inconsistency; furthermore, information exchange obligations to remedy informational abuses under Article 102 can become suspicious under Article 101, as they can possibly ease unlawful collusion. The Chapter is therefore organised as follows. Part 2 reviews a selection of Article 102 (or homologous norms in other jurisdictions) decisions dealing with information flows. In particular, two lines of cases are presented: those where exchanges of information are the subject-matter of abuse cases (at 2.1 below), and those where such exchanges are the object of “para-regulatory” remedies enforced pursuant to Article 102 (at 2.2 below). Part 3 focuses on the different treatment exchange of information receives under Articles 101 and 102 TFEU. Thereby possible internal clashes between these two branches of competition law will be analysed. The conclusion explores the theoretical possibility of reconciling such clashes, suggesting a framework for competition agencies to adequately intervening on market information flows