The Lawfulness and Acceptability of Enforcement of ... - Stibbe

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discussions of potentially comniercially sensitive information as cartel
undertakings which participated in the contacts themselves) qualify these
protecting themselves against future charges. If the leniency applicants (the
to the competition authorities in the context of leniency applications aimed at
588 WORLD COMPETITION
these practices as ‘object’ restrictions, without the leniency applicants or the
infringements, there is a natural tendency for the competition authorities to treat
competition authorities asking themselves the question whether the knowledge of
rules. Why should a competition authority doubt the actual relevance of the
that information can actually influence competition according to general empirical
exchanged information for the process of competition on the market if the
competition is not certain, such exchanges of information can thus be classified
under European law as practices whose object is to restrict competition. This is
the competition rules by way of their application?
undertakings themselves have already affirmed that there was a violation of
generally expressed expectations for future market developments will be
designated as hardcore restrictions. This risk also affects institutionalized systems for
basis of general empirical rules that they will always (or ‘per se’) have the effect of
exchanging market information. In respect of such systems, it is not certain on the
restricting competition, but it is certain that they will remove some degree of
uncertainty regarding the conduct of competitors. Although their effect on
because the case law does not focus on the issue of the restriction of competition
but on the reduction of uncertainty. Under this case law, the provision or
discussion of a competitor’s corporate information removes, by definition, the
uncertainty that is inherent to the process under competition law regardless of
and/or actually used. In EU jurisprudence removing uncertainty is equivalent to
whether that information is correct, relevant from the perspective of the recipient
concerted action, even though the effects of such concerted action on competition
leading to what is known as ‘false positives’: practices are classified as cartel
cannot be assumed to exist ‘per se’.
infringements even though it is not certain that they can have restricted
nevertheless make a clearer distinction in the ‘Horizontal Guidelines’ between
competition. The commendable attempts of the European Commission to
forms of information exchange that must be assessed on the basis of their effects
forms of exchanging information that are always wrong on the one hand and
bound by the overly broadly formulated T-Mobile criterion.
on the other, were doomed to fail because the European Commission is also
As a consequence, there is a risk that harmless discussions about more or less
[20111 OJ Cu/i.
Formalistic application of the T-Mobile criterion therefore implies the risk of
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