COMPETITION • FRENCH LAW • RESTRICTIVE AGREEMENTS
Exchanges of information are only prohibited by Article L. 420-1 of the Commercial Code if their purpose or effect is to restrict competition. An exchange of information that relates to specific data, that is relatively systematic and concerns the principal operators in the market, or that takes place in a highly concentrated market, will certainly be prohibited. However, it is not necessary for the market to be oligopolistic for exchanges to be unlawful: it is sufficient that the supply is not atomized. Whether an exchange between suppliers concerns non-individualized data or segmented data, it is equally reprehensible. The fact that the information is public is also irrelevant. Indeed, an exchange of information on prices already known by customers remains illegal, where obtaining such information on the market would have been more complex, less exhaustive and less immediate. Generally speaking, French case law has been extremely strict with regard to the exchange of information between competitors, not hesitating, when the market is concentrated, to penalize them severely even if the exchange does not directly concern competitive data.
The Competition Authority would now seem to want to limit the classification of “exchanges of information” between competitors to the periodic transmission of nominative confidential data relating to past behavior: exchanges of data on the commercial and pricing strategy that the undertakings intend to adopt would be horizontal concerted practices relating to the future pricing behavior of competitors. In order to fall foul of the prohibition, the information exchanged must also, according to the Competition Authority, be of a strategic nature, i.e. enable the recipient to measure the effectiveness of its competitors’ commercial policy and to adapt its competitive behavior on the market in the light of its actual operation and the specific circumstances of the case. When this is the case, the courts today have no hesitation in classifying exchanges of information as restrictions by object.
