Nederlandse Mededingingsautoriteit 1 St. Martin Conference 2009 Brno Information Exchange Martijn Rijke 12 November 2009

Nederlandse Mededingingsautoriteit 2 Definitions  Information exchange as a monitoring mechanism of an antitrust violation (e.g. price fixing, market sharing etc) (past)  Information exchange as a violation of the antitrust rules in themselves (past)  Information exchanges as a violation of the antitrust rules in themselves (future) The focus of this presentation is on (2).

Nederlandse Mededingingsautoriteit 3 Competition Act (CA): Article 6 -Article 6 CA is based on Article 81 EC -NMa Guidelines on Cooperation between undertakings (2008)

Nederlandse Mededingingsautoriteit 4 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, Bicycle- Case 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 Mededingingsautoriteit 5  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 Bicycle case (1615): facts(1)

Nederlandse Mededingingsautoriteit 6 Bicycle case (1615) structure (2) 5 Bicycle Manufacturers4 Other participants SOM-F (The foundation) GFk (Market research Agency) Research panel (+/- 150 retailers)

Nederlandse Mededingingsautoriteit 7 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 Mededingingsautoriteit 8 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 Mededingingsautoriteit 9 Information exchange as evidence of collusive agreement  Yes, according to CA and Art. 81 EC See inter alia Mobile Operators and Betonmortelcentrales

Nederlandse Mededingingsautoriteit 10 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)