World of Metallurgy ERZMETALL 68 2015 No 3 189 Walter Frenz Professional Exchange During Conferences Infringements of Competition Law Such an effect is more likely with regard to potential col lusive effects in the case of a sufficiently concentrated non complex stable and symmetrical market with participants active in the market for a long period of time 35 If there is lively competition then the exchange of sensitive informa tion has less of an anti competitive effect on the market than is the case of a market characterised by homogeneous prod ucts from a few large participants in the market 36 Converse ly the exchange of information may in fact spur competition in circumstances there is lively competition amongst a large number of smaller market participants 37 The importance of information outspoken on conferences depends on the economic situation of the actors and their firms However a concentrated oligopolistic market has the pe culiar feature that the exchange of information is easier from the outset 38 The exchange of information thus raises the danger that the strategies of the market participants will be completely disclosed39 resulting a foreclosure effect as to external actors40 even if the information exchange does not directly relate to prices or other anti competitive mechanism 41 In addition in cases where prices are gener ally know the enquiring market participant is robbed of the opportunity to cause competition on the demand side 42 5 Conclusion Meetings besides or after conferences are able to consti tute a coordination in the sense of antitrust law Oligopo 35 Detailed treatment Commission Communication Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co operation agreements Offi cial Journal 2011 C 11 p 1 marginal no 77 et seq last amended by OJ 2011 C 172 p 22 36 See Commission Decision 92 157 EEC OJ 1992 L 68 p 19 mar ginal no 38 UK Agricultural Tractor Registration Exchange In this case four undertakings held an 80 market share in the British market for tractors 37 European General Court Case T 35 92 ECR 1994 II 957 marginal no 51 John Deere 38 European General Court Case T 34 92 ECR 1994 II 905 marginal no 91 Fiatagri 39 European General Court Case T 34 92 ECR 1994 II 905 margi nal no 91 Fiatagri if the information exchange does not serve to make other classic cartel agreements possible in the first place cf on this issue regarding an exchange of information without reporting unit Commission Decision 2004 421 EC OJ 2004 L 125 p 50 mar ginal no 11 Industrial tubes as well as Gipsplatten Commission Decision COMP E 1 37 152 summarised in Commission 32nd Re port on Competition Policy 2002 p 206 et seq 40 European General Court Case T 34 92 ECR 1994 II 905 marginal no 87 Fiatagri 41 European General Court Case T 34 92 ECR 1994 II 905 marginal no 91 Fiatagri 42 Haag in Schröter Jakob Mederer Art 81 groups of cases Co operation agreements marginal no 66 listic markets and company specific data are most likely to have an impact on the market 43 The exchange of official information and thus easy and favorable to procure is usu ally without an effect on the market44 except if employed for a cartel and based on cooperation45 or reduces even minor the uncertainty on the market In contrast confer ences and their plenary sessions are focused on a public presentation not an exchange between undertakings It depends on the content of information whether they violate competition law Most problematic are data that provide information on the future behavior In this per spective preceding data can also be relevant e g when prices are unusual to be renegotiated 46 The competition is also reduced when all relevant sales data are communicat ed 47 It is generally problematic when information do not relate to past activities but to current and future ones It suffices if information make a constant monitoring of cur rent deliveries possible 48 It should be noted that no sensitive company data are ex changed Discussions should rather concentrate on general issues that do not notify present competitors about the cur rent commercial strategy That should not even occur in the margins The regular participation in symposiums accom panying conferences and concerning continuous briefings between business representatives is a possible problematic point It affords no protection against judicial pursuit of violations of competition that the meeting takes place a neutral location in the frame of another organization If the aforementioned rules are applied there will not be an infringement of competition law 43 Commission Communication Fn 6 marginal no 89 a E 44 European General Court Case T 191 98 inter alia Altlantic Container Line ECR 2003 II 3275 marginal no 3275 45 See the case OLG Düsseldorf ruling of 19 10 2012 V 1 Kart 1 6 12 OWi et al 46 Commission Communication Fn 6 marginal no 90 47 ECJ Case C 7 95 P ECR 1998 I 3111 marginal no 51 John Dee re 48 See European Court of First Instance Case T 148 89 ECR 1995 II 1063 marginal no 72 Tréfilunion Prof Dr Walter Frenz RWTH Aachen Lehr und Forschungsgebiet Berg Umwelt und Europarecht Wüllnerstraße 2 52066 Aachen Germany frenz bur rwth aachen de

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