By Karry Lai
Uncertainty continues to surround the definition of a
concerted practice when competitors discuss information on
pricing. Where should parties draw the fine line between
a concerted practice, an agreement, and an understanding? The
answer appears to be a nuanced one.
In yesterday’s session 'Antitrust after
cartels: next generation enforcement’, panellists
offered global perspectives from enforcement, in-house counsel
and private practitioner angles on issues of enforcement when
it is uncertain whether competitor coordination falls short of
being a cartel.
Governments in a number of jurisdictions have policies in
the pipeline to target the issue of concerted practices.
Australia’s Competition and Consumer Amendment
(Competition Policy Review) Bill 2017 is expected to be passed
in the next few weeks, according to Sarah Court from the
Australian Competition and Consumer Commission.
"At the moment it is frustrating for regulators when we
can’t act on the information," said Court. "From a
regulator’s perspective, communication between
competitors on information on pricing…and whether
competitors acted on [it] are all evidence that will be looked
Panellists highlighted the potential for information
disclosure to be constituted as concerted practice. "In
this day and age, information exchange through social media is
especially concerning with text messaging and apps," said Mika
Clark from United Airlines in the US. In a recent example, the
Department of Justice (DOJ) brought a civil antitrust case
against DIRECTV for improper exchange of information through
- Competition regulators around the world are
increasingly concerned about concerted
- Issues surrounding information exchange need to
be fleshed out to provide more clarity for businesses and the
legal community as current regulation is often not
- Businesses need to be cautious of how they
participate in information disclosure and exchange with
competitors to avoid breaching anti-competition
"If it’s an email on a
competitor’s pricing and a client has seen the
material, it would be wise to email the person back telling
them that they do not want to receive the information so that
there is at least a record," said Carolyn Oddie, partner at
"Information disclosure by competitors isn’t
always anti-competitive and may even have benefits for
consumers, suppliers, investors and help competitors to
compete," said Heather Irvine, director at Falcon & Hume,
South Africa. "But there is a nuanced assessment of the
circumstances of information."
Factors that come into play are the structure of the market
such as the number of competitors and the stability of the
market; the characteristics of information such as whether it
is aggregated; and the modality of disclosure. This can include
whether the discussion was a private conversation or public
"It is frustrating for
regulators when we can't act on the information"
"The EU courts have indicated that public distancing is not
the only way and that electronic communication is sufficient to
be considered as distancing, so the public disclosure element
becomes less crucial," said Rein Wesseling, partner at Stibbe
in the Netherlands. "The EU has provided for safe harbours if
the information collected is at least three months old."
Surveys and data benchmarking in businesses can have
pro-competitive aspects through best performance metrics, but
they could bring into question whether they are affecting
competition in the market.
An example of survey guidelines is the US’
Department of Justice/Federal Trade Commission’s
Policy in Health Care (1996) for data on people in employment.
"From an employment practice perspective, the information
exchange may be lawful if a neutral third party manages the
information, the information is not recent, the information is
aggregated to protect the identity of the individuals, and
there is enough data to prevent the linking of data to an
individual source," said Clark.
"One needs to ask: what is the information needed for?" said
Irvine. "If the client cannot articulate a genuine requirement
to collect information other than to dampen competition, there
is no reason to do it."