“From Collusion to Competition” – Tenth Issue

Jul 25, 2013

CPI Cartel Column edited by Rosa Abrantes-Metz (Global Economics Group/NYU Stern School of Business)

Welcome to the July issue of “from Collusion to Competition.” Today we are honored to have an excellent article by Mr. Rod Sims, Chairman of the Australian Competition and Consumer Commission (ACCC). Mr. Sims’ article is titled “Unilateral Disclosure of Information – An Australian Perspective,” and it focuses on the very important and topical issue of how to analyze exchanges of information among competitors, with a particular focus on unilateral exchanges.

An important component for a modern and effective anti-cartel program are guidelines on horizontal exchanges of information. In the U.S., the DOJ and the Federal Trade Commission (FTC) have guidelines dating from 2000, while in Europe the most recent European Commission’s guidelines are dated 2011. This year, the Regional Competition Center for Latin America has prepared such Guidelines, authored by myself.

Guidelines on exchanges of information among competitors should be designed to serve two purposes. First, to provide competition authorities with guiding principles and a general framework for analyzing horizontal collaborations among competitors. Second, to provide guidance to businesses and their legal advisors on how such agencies may wish to assess the legality of these formal or informal agreements. They should also contribute to greater transparency and predictability of antitrust assessments, and to the adoption of procompetitive collaborations while deterring anticompetitive ones.

Guidelines on horizontal exchanges of information put forward an analytical framework based on economic and legal principles for assessing horizontal agreements and their likely competitive effect, the contexts in which they take place, and applying to agreements that are not per se illegal. Many factors need to be taken in consideration, not only with respect to the characteristics of the market and players themselves, but also with respect to the characteristics of the collaboration or exchange of information.

In this article, Mr. Sims focuses on unilateral exchanges of information. In Australia there are laws prohibiting cartel conduct, and since July 2009, criminal sanctions also apply to individuals found guilty of engaging in cartel conduct. In order to prove cartel conduct, the ACCC generally needs to prove an element of collusion between competitors. Mr. Sims explains how Australian courts have approached unilateral disclosures of information and discusses the new provisions of the Competition Consumer Act 2010 that now operate in a limited way to prohibit such disclosures. The article also contrasts the approaches followed by the European Commission and the U.S. Department of Justice and Federal Trade Commission when analyzing horizontal exchanges of information, with the Australian framework.

Excellent reading! I hope you enjoy it.

Have a wonderful your Summer!

Rosa M. Abrantes-Metz

Click here to read Unilateral Disclosure of Information: an Australian Perspective