On 1 March 2022, the European Commission (“EC”) published for consultation two draft revised horizontal block exemption regulations (“HBERs”) on research and development (“R&D”) and specialisation agreements, as well as draft revised guidelines on horizontal cooperation (“the Guidelines”). The updated EC regulations and Guidelines are expected to enter into force on 1 January 2023.
The draft Guidelines provide welcome additional guidance on information exchange both in terms of clarifying existing concepts and providing specific guidance in relation to issues not previously covered such as the use of algorithms, information exchange in the context of M&A and measures to limit and control how data is used. The structure of the Guidelines has also been improved to make the document more readable, a move by the EC to address concerns that the existing text is unclear and difficult to interpret.
A. Guidance on existing concepts
The Guidelines provide additional guidance on certain concepts relevant for all companies seeking to self-assess information exchange agreements, e.g. genuinely public information/data, age of information, unilateral disclosure, aggregation of information/data, and indirect information exchange (hub-and-spoke and third party facilitators). The draft Guidelines also make it clear that Article 101(1) will apply if an exchange of commercially sensitive information is likely to influence the commercial strategy of competitors; notably where it reduces uncertainty regarding competitor’s future or recent actions in the market, and regardless of whether the companies involved in the exchange are granted a benefit through their cooperation.
- Genuinely public information: For information to be considered as ‘genuinely public,’ there must not be a difference in terms of cost of access between different competitors and customers. Information will therefore not be considered as genuinely public if the costs involved in collecting the data discourage others from accessing it. Likewise, the cost of accessing the information cannot be more costly for buyers unaffiliated with the exchange system, than for the companies exchanging the information.
- Age of information: In general, the exchange of old and historical data should not raise competition concerns. However, this has to be analysed on a case-by-case basis, paying particular attention to the relevance of the information and whether it has lost its commercially sensitive nature. This will differ between industries and sectors.
- Unilateral disclosure: Guidance has been expanded in relation to unilateral disclosures. The draft Guidelines make it clear that unilateral disclosure of commercially sensitive information could lead to an infringement where the information is accepted by competitors, regardless of the fact that only one party unilaterally informed its competitors of its intended market behaviour. The EC gives a number of traditional examples of this type of exchange (such as meetings, by phone, electronically), but also includes a new addition – an input in an algorithmic tool.
- Indirect exchange: The Guidelines codify recent EU case law which states that an exchange of commercially sensitive information among competitors can take place via a service provider, an online platform or a shared algorithm, such as real-time price monitoring tools. The Guidelines note that while using publicly available data to feed algorithmic software is legal, the aggregation of commercially sensitive information into a pricing tool offered by a single IT company to which various competitors have access could amount to collusion,
B. Use of algorithms
The Guidelines provide specific guidance on the use of algorithms, noting that algorithms may increase the risk of collusion. Algorithms may allow competitors to increase market transparency, to detect price deviations in real time and to implement more effective punishment mechanisms for such deviations. The Guidelines note that the risk of collusion is higher in markets with a high frequency of interaction, limited buyer power and presence of homogenous products or services.
C. Information exchange in an M&A or regulatory context
Limited new guidance is provided on information exchange in an M&A or regulatory context. The text notes that information exchange in the context of M&A will be subject to the rules of the Merger Regulation if it is directly related and necessary for the implementation of the acquisition. In the regulatory context, the Guidelines stress that Article 101(1) will continue to apply, and companies should limit any information exchange to what is required by the regulation in question. Precautionary measures should be implemented in case commercially sensitive information is exchanged.
D. Measures to limit and control how data is used, and access to information and data
New sections have been added giving guidance on measures to limit/control how data is used and access to information. The use of a clean team is given as an example when competitors need to exchange commercially sensitive information. The text also points out that data pool participants should only have access to their own information and the final (aggregated) information of other participants. Technical and practical measures should be taken to ensure that a participant will not be able to access commercially sensitive information from other participants (e.g. data pool managed by an independent third party).
The authors wish to thank Julien Haverals, International Trainee, Norton Rose Fulbright LLP Brussels for his contribution.