World of Metallurgy ERZMETALL 68 2015 No 3 187 Walter Frenz Professional Exchange During Conferences Infringements of Competition Law formation In any event this increases transparency in the market For example it may be easier to obtain information directly from a competitor than it would have been if one had to pour through tedious publications Even if there are few competitors in a market openness may nonetheless be increased because the exchange of information between undertakings becomes automated and more extensive The exchange of information between competitors as such ar tificially alters normal competitive conditions and is thus in any event generally capable of restricting competition The extent to which this applies in a specific case depends on the circumstances This is particularly true in the case of unilateral transfers of information which are however gladly accepted by competitors 4 It can also include information sharing within the frame work of conferences which cancels the general separation of companies In many cases the information exchange shall be reduced as inconspicuously as possible So meet ings besides or during a conference seem to be appropriate But they can be a platform of hidden coordinations if they restrict the competition Whether they intend it or they have such a genuine effect see Art 101 TFEU have as their object or effect So their level cannot be detached from that e g if they discuss a specific problem during a conference without disclosing company internal informa tion or at least if company related data are communicated to competitors The line is often very thin and competi tion authorities are not present in the meetings so they need to reconstruct the concerned information The open presentation or discussion in the auditory of a conference can transport information it is not for the competition but for all auditors and so for the public A problem is if the conference is in fact an assembly of competitors In this case the public does not exist and it is like a committee a closed shop in which information is exchanged But even then it depends on the content of the information which is presented and discussed Is the information relevant for competition like prices and developments of future pro duction and strategy or not 2 Required restraints of competition Whether an exchange of market and other information have an anti competitive effect primarily depends on who exchanges what information in what manner Such an ex change of information may in particular occur via collec tive central institutions or however via suppliers or retail ers of an undertaking or directly between competitors The new version of the horizontal cooperation guidelines specifically address the exchange of information in all of its variety for the first time 5 4 In relation to a competing party to a licensing agreement Dreher Körner WuW 2013 104 5 Commission Communication Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co operation agreements Official Journal 2011 C 11 p 1 marginal no 55 et seq last amended by OJ 2011 C 172 p 22 Most recently also OLG Düsseldorf dated 29 10 2012 V 1 Kart 1 6 12 Owi et al Critical view Heyers NZKart 2013 99 103 with additional citations The fundamental requirement for the relevance of an ex change of information for purposes of competition law is that it is based on or it is part of an agreement between undertakings a concerted practice or the decision of an association of undertakings6 for example in the context of a research and development agreement which is based upon the exchange of the resulting progress However a concerted practice is already founded in cases where an intentional practical collaboration replaces competition exposed to risk7 even if such collaboration does not yet re late to a specifically developed plan For such purposes the exchange of strategic data itself is sufficient because this reduces independence of action in the market 8 this is even the case for the unilateral disclosure of such data accepted by the recipient Reciprocal contacts are already present in such cases as is required for concerted practices 9 This factor distinguishes such cases from the case of merely public information even from competitors or customers for example as to price as well as parallel conduct similar ly based on certain albeit publicly available knowledge which is permitted 10 3 Detrimental exchange of company specific data According to the established decisional practice of the Com mission an exchange of information has an anti competi tive effect in any event if the information relates to orders prices 11 turnovers 12 investments 13 or the current business policies14 of an undertaking 15 These forms of information are normally trade or business secrets 16 Accordingly func tioning competition generally rests upon uncertainty as to 6 Commission Communication Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co operation agreements Official Journal 2011 C 11 p 1 marginal no 60 last amended by OJ 2011 C 172 p 22 7 ECJ Case C 7 95 P ECR 1998 I 3111 marginal no 86 John Dee re Case C 8 08 P ECR 2009 I 4529 marginal no 26 T Mobile Netherlands 8 Commission Communication Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co operation agreements Official Journal 2011 C 11 p 1 marginal no 61 last amended by OJ 2011 C 172 p 22 9 European General Court Case T 25 inter alia 95 ECR 2000 II 491 marginal no 1849 Cimenteries CBR Critical and limiting Heyers NZKart 2013 99 102 For additional discussion see above marginal no 848 et seq 10 See Emmerich in Immenga Mestmäcker Vol 1 2 Article 101 1 TFEU marginal no 93 et seq 11 Commission Decision 89 190 EEC OJ 1989 L 74 p 1 marginal no 17 et seq 29 et seq PVC 12 Commission Decision 92 157 EEC OJ 1992 L 68 p 19 marginal no 17 et seq UK Agricultural Tractor Registration Exchange 13 Commission Decision 84 405 EEC OJ 1984 L 220 p 27 marginal no 67 Zinc Producer Group 14 Commission Decision 84 405 EEC OJ 1984 L 220 p 27 marginal no 68 Zinc Producer Group 15 Haag in von der Groeben Schwarze following Art 81 EG groups of cases cooperation agreements marginal no 65 et seq 16 Cf here Commission Decision 2004 138 EC OJ 2004 L 56 p 1 mar ginal no 423 Austrian Banks Lombard Club

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