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Going bananas - The European Court of Justice has confirmed the EU Commission’s approach to information exchange between competitors

Kyriakos Fountoukakos and Kristien Geeurickx, Competition Law Insight, 12 May 2015

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In its ruling of 19 March 2015 (Case C-286/13P) relating to the banana cartel, the Court of Justice of the EU (CJEU) dismissed the appeal by banana importer Dole against the General Court’s judgment in its entirety. The CJEU agreed with the Commission’s findings, supported by the General Court, that the bilateral exchange between banana importers of pre-pricing information relating to the weekly quotation prices for bananas did amount to a concerted practice with the object of restricting competition in breach of article 101 TFEU.
The ruling confirms the EU Commission’s approach to information exchange as set out in its 2011 guidelines on horizontal co-operation agreements (the Guidelines). The CJEU held that, even though it is still necessary to consider the information exchange in its proper context, information exchanges between competitors of individualised data regarding intended future prices or quantities should be considered a restriction of competition “by object” (ie as breaching the rules without any need to demonstrate an actual effect on the market). The CJEU ruling also makes it clear that the prohibition is equally applicable to more general market information that is capable of influencing future prices, and that there is no need for a direct connection between the practice and consumer prices.
Whereas other exchanges of information do not restrict competition by object, they may still have the effect of restricting competition. Assessing whether there is an anticompetitive effect requires a more detailed analysis of the context in which the exchange of information is taking place and the nature of the information. The Guidelines make it clear that the exchange between competitors of strategic data (data that reduces strategic uncertainty in the market) is more likely to be caught by article 101 TFEU than the exchange of other types of information.

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