One Meeting is One Too Much! The European Court of Justice Sets a Strict Antitrust Standard for Information Exchanges Between Competitors

Originally published June 10, 2009

Keywords: European Court of Justice, ECJ,

Antitrust standard, information exchanges, competitors,

infringement, Community Competition Laws

On June 4, 2009, the European Court of Justice

("ECJ") rendered an important

judgment1 on the permissibility of information exchanges

between competitors. The ECJ has concluded that a single meeting at

which one company discloses a single piece of information capable

of removing uncertainties in the market may be sufficient to

establish an infringement under the Community Competition Laws.

Background

Representatives of five operators offering mobile

telecommunication services in The Netherlands held a meeting at

which one of the representatives communicated the reduction of

standard dealer remunerations for postpaid subscriptions by his

company. The operators discussed this and agreed that it was

desirable for the payments to be adjusted downwards. The

Netherlands Competition Authority found that the five companies had

concluded an agreement or had entered into a concerted practice.

The Dutch authority imposed a fine totalling EUR 88 million after

finding a violation of a provision of the Dutch Cartel

Act.2

The provision in the National Cartel Act is similar to Article

81 EC Treaty. Article 81(1) EC Treaty prohibits all agreements

between undertakings, decisions by associations of undertakings and

concerted practices, which may affect trade between Member States

and which have as their object, or effect the prevention,

restriction or distortion of competition within the common

market.

Issues

The authority's decision was appealed. The Dutch Appellate

Court agreed that interpretative points on EU law arose and asked

the ECJ to address the following issues:

Clarification of the notion of "concerted practice",

in particular, the criteria that must be applied when analyzing

whether a concerted practice has as an anti-competitive

object;

Clarification of the presumption of casual connection between

concerted practice and market conduct;

Clarification of the extent of such presumption, in particular,

whether the presumption applies if the concerted practice is based

only on a single meeting between competitors.

ECJ Judgment

Concerted practice and object

The question whether a "concerted practice" is

anticompetitive has to be analyzed in the light of its objective

and the economic and legal context. While the intention itself is

not an essential element, it can be taken into account. The ECJ

judgment reiterates the position of law: it is not necessary to

consider the actual...