Estrategia de Comunicación Integral

There are essentially two ways in which European Community policy views information exchange agreements. First, there is the possibility that information exchange is regarded as part of a price fixing agreement (or some other collusive agreement). In these cases there is little interest in the information agreement as such since information sharing is considered only part of a larger agreement which infringes Art 85(1) (see cases Cobelpa (OJ L 242, 1977), Suiker Unie (OJ L 140, 1973), Vegetable Parchment (OJ L 70, 1978)). However, the European Community has also argued that an information exchange agreement by itself can be an infringement of Article 85(1), even in the absence of evidence for collusion on prices. This has been a special concern in some important recent cases like Wood Pulp (OJ L 85, 1985), Fatty Acids (OJ L 3, 1987), and UK Agricultural Tractors Exchange (OJ L 20, 1993). In this section we want to discuss the set of arguments that have been made regarding these latter cases and in general policy statements that have been applied to them.

Competition policy based on Art 85(1) of the Treaty of Rome has as its aim to enforce the prohibition of agreements which have as their "object or effect the prevention, restriction, or distortion of competition within the common market". The wording of Art 85(1) therefore assumes the existence of some benchmark of "competition". For policy purposes the European Community appears to define "competition" as "independent decision making" by firms or the "absence of market coordination". The European Court has clarified this in a decision which has become central for the treatment of collusion and information exchange (Suiker Unie&Ors v. EC Commission 1975, ECR 1663):

"The criteria of coordination and cooperation ... must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market...Although it is correct to say that this

requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market."

From the above quote one could conclude that any communications between firms operating in the same market are prohibited under Art. 85(1). This is not and cannot be in practice the interpretation of the above argument. Any communication between firms will, if it has a purpose, have the result of changing actions of the firms in one way or the other. One cannot distinguish in any way, whether an information exchange agreement comes about because each firm gains information or because a firm wants other firms to obtain information in order to change their course of action. Firms reacting intelligently to the market will always be aware of both effects. For example, in the static theory of information exchange strategies of competitors become more correlated because with information exchange firms have more correlated information. When information is exchanged firms anticipate that an intelligent adaptation to better information about market conditions leads to this correlation effect. Firms will only exchange information if this effect is not negative enough for them to dominate any gain in information. However, firms still set prices (or quantities) completely "independently" in the sense that there is no joint decision making and no mechanisms that would enforce joint decision making indirectly. It appears that while firms might anticipate how competitors react to the information about market conditions that they supply, there seems to be no consistent argument that would support the claim that firms are less independent in their decision making with information exchange than without.

Wood Pulp, OJ L 8511, 1985)

"creates a system of mutual solidarity and influence and thereby tends to substitute for the risks inherent in competition."

This statement can be interpreted in two ways. First, it could just be taken as a rephrasing of the earlier claim that exchanging information somehow leads to coordination between firms in an unspecified manner. An interpretation that would be compatible with economic analysis would be that information exchange would facilitate tacit collusion (in dynamic interaction of firms), by improving the monitoring possibilities of rivals' behaviour. As we have discussed in the survey part of this report improving monitoring ability quite generally increases the scope for tacit collusion in dynamic games. In order to police agreements price wars do not have to occur as frequently in order sustain tacit collusion and higher prices can be sustained. Direct exchange of price or quantity information in form of invoices or other verifiable information significantly increases the potential for sustaining collusion non-cooperatively. We see in this the main way in which information exchange can have significant effects on the presence of collusive behaviour. While it is very hard to prove infringements of Art 85(1) in form of price fixing agreements, these agreements can be credibly sustained only if there is sufficient information about the actions of competitors. It may therefore be sensible from an economic point of view to treat certain types of information exchange (e.g. direct exchange of quantity and price information) as infringements of Art 85(1) because they are likely to be motivated by an attempt to facilitate collusive conduct.