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Thursday, 7 October 2010

Object agreements and information exchanges

Just back from a very good session at the British Institute of International and Comparative Law (BIICL) which featured excellent presentations on agreements with the object of restricting competition and information exchanges from: Christian Ahlborn (Linklaters), Matthew Bennett (OFT) and Cristina Caffarra (Charles River Associates), ably chaired by Christopher Vajda, QC. A lot of criticism directed at Case C-8/08 T-Mobile [2009] ECR I-4529 in particular the passage in para 43 where the ECJ says that "A concerted practice pursues an anti-competitive object for the purpose of Article [101] (1) where, according to the content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction of distortion of competition." As Christian Ahlborn pointed out, if taken literally, this formulation would not leave any room for the effects cases. He did go on to point out that the English translation, of what was originally in German in AG Kokott's opinion is a poor one and suggests something wider than the original language. Whether this logic will be followed is another matter, and an alternative interpretation was put forward that really the case was about whether or not one infringement could lead to a finding of concerted practices and the quote should be read in that context.

On information exchanges, Matthew Bennett, talking in a personal capacity, outlined some of his own thinking in advance of an OFT discussion paper. (More detail can be found in a paper he did with Philip Collins in the August issue of European Competition Journal.) He argued that the most harmful exchange of information was disaggregated, confidential information on future intentions exchanged between competitors in private (and would most likely be in the object box), whilst past aggregated public information between companies was least likely to provide net harm. It was pointed out from the floor that it is possible to think of examples of where problems can be caused by available aggregated public information, so it is perhaps not a completely clean bill of health. In between these two areas Matthew Bennett thought that there was a grey area involving current pricing and public prices on which it would be hard for a competition authority to provide precise guidance but that perhaps the public/private distinction might provide some clarity.

The next BIICL competition event is on 15th November on hub and spoke arrangements: details on http://www.biicl.org/events/

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