Exchange of information between competitors: ECJ ruling sets new standards

A new ruling by the European Court of Justice (ECJ, judgment of 29.7.2024, C-298/22) focuses on the limits of the exchange of information under EU antitrust law. The Court clarifies when an exchange of information constitutes a restriction of competition "by object" within the meaning of Art. 101 TFEU. In the case of restrictions of competition by object, the antitrust authority does not have to prove specific anti-competitive effects on the affected market. An exchange of information with competitors is therefore associated with a high compliance risk under antitrust law.

The case

The background to the proceedings was a decision by the Portuguese competition authority (AdC), which had imposed fines on several credit institutions. The institutions had exchanged confidential information on credit conditions and production figures, which was deemed to be a violation of Article 101 TFEU.

The AdC classified the exchange as a "restriction of competition by object" without examining the actual impact on the market. The credit institutions defended themselves in court, but ultimately argued in vain that the exchange was not automatically anti-competitive and that too little consideration was given to the economic context.

The judgment

Art. 101 (1) TFEU prohibits agreements and concerted practices that prevent, restrict or distort competition. The "restriction of competition by object" may already be sufficient, without the need to prove specific effects on the market. It is sufficient that the form of coordination between the companies is considered to be sufficiently harmful to the functioning of competition.

This case involved an exchange of information that took place on a confidential basis and concerned sensitive data such as future credit margins and risk parameters. The Court emphasized that the exchange of confidential, strategic information can lead to the companies involved no longer making their future market decisions independently, but tacitly coordinating them with each other. This significantly distorts competition, particularly in highly concentrated markets, as was the case here.

The ECJ understands the term "strategic information" broadly. It includes all data that is not already known, which relates to a competitive parameter and which can reduce the uncertainty of the parties involved about the future behavior of the other parties. The Court therefore also classified the exchange of production figures as distorting competition because this information could be used to predict the market behavior of competitors.

The Court ruled that an exchange of strategic information is to be regarded as a restriction of competition "by object" if it enables the companies to eliminate an uncertainty in competition. According to the ECJ, in these cases it is not necessary to prove that the exchanged information actually caused the companies involved to behave in a coordinated manner and what effects the exchange actually had on the market behavior of the companies involved in order to affirm a cartel infringement. It also refers to its established case law, according to which even an occasional exchange of information can constitute a restriction of competition.

Consequences for companies

The ECJ's ruling underlines the high risk associated with the exchange of information relevant to competition. Even the sporadic exchange of strategic data between competitors can constitute antitrust violations and result in substantial fines. In cases of doubt, antitrust authorities do not even have to prove that the exchange of information had a concrete impact on competition between the companies involved. Proof of participation in an information exchange alone can be sufficient for a sanction.

Companies should therefore exercise the utmost care and ensure that they have a functioning and effective antitrust compliance program in place that prevents not only bad intentions but also unintentional violations. Employees and management bodies should be sufficiently sensitized to this risk so that violations can be identified at an early stage and, in the best case, avoided altogether.

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