Competition Policy Applied to Information Exchanges between Competitors in the EU: Proceedings of the Spanish Competition Authority in a Recent Case

Mon Dec 22 13:47:00 EST 2014
By Dr. Pedro Posada De La Concha and Sergio García De Frutos

In recent years, the Spanish Competition Authority (CNMC) has conducted a series of investigations regarding potentially anticompetitive practices involving the exchange of commercially sensitive information between competitors. Most of these cases concern allegations of price fixing and/or market-sharing agreements, in which the existence of information exchanges between competitors played the key role in the investigation. Among these investigations, case S/0404/12 ("AENA Commercial Services") stands out. In this case, the Spanish Authority's investigation focused on the information exchange practice as an independent violation of antitrust rules, i.e., as an autonomous infringement of Article 1 of the Spanish Competition Law (or Article 101 of the Treaty on the Functioning of the European Union—TFEU), and not as an ancillary conduct of a cartel or an explicit agreement. The CNMC concluded that the exchange of commercially sensitive information between car rental companies in several airports in Spain did constitute a violation of antitrust law.

This paper, by NERA Senior Consultant Dr. Pedro Posada De La Concha and Analyst Sergio García De Frutos, examines the economic analytical framework developed in the EU to identify the elements and factors that are relevant for the assessment of information exchanges, and which were not considered by the CNMC, particularly in the investigation of case S/0404/12. The authors point out that, in order for competition authorities to conduct an objective and rigorous assessment of information exchanges, they must analyze the actual effects that such an exchange may have caused, and examine the specific manner in which the exchange may have facilitated a collusive agreement or could facilitate it in the future. Additionally, the procompetitive effects that could be brought about by these practices should also be examined. Performing thorough and appropriate analyses will help prevent excessive intervention that could discourage practices that are potentially beneficial for consumers.