Can I share information with my competitors?
Unlawful information exchange occurs when competitors share commercially sensitive information amongst themselves (directly or indirectly via a third party), enabling them to reduce competition.
For example, a company might tell its competitors that it is planning to increase its prices in a few days. By informing its competitors in advance, the company may test whether they will follow suit. On the one hand, it will not proceed with the price increase if the competitors do not intend to follow. On the other hand, if the competitors do intend to follow, both the company and its competitors will adjust their pricing. The exchange of information therefore reduces price competition.
Exchanging competitively sensitive information is particularly a concern if there are only a few companies in the market, or all of the companies in the market are involved in the exchange.
Businesses disclosing competitively sensitive information to other companies may be considered as engaging in cartel conduct and subject to severe penalties. Recipients of such information may also be at risk.
Information generally safe to disclose/receive
Information generally unsafe to disclose/receive
- Information on best practices, e.g. on safety, emission standards etc.
- Future pricing intentions
- Information related to sustainability credentials
- Information relating to elements of price, e.g. discounts, commission rates, etc.
- Information to help companies predict demand and avoid shortages
- Information related to quantities, e.g. sales volumes, turnover, capacity, and market shares
- Information that is historic
- Information on commercial strategies which competitors would normally keep secret
- Information related to public policy or regulatory matters
- Information related to tenders or bidding intentions
The above list is non-exhaustive and provides only a general idea as to what types of information are generally regarded as safe or not safe to disclose or receive. Ultimately, whether an agreement to exchange information would be considered as harming competition depends on the actual circumstances.
Information exchanged through a third party
A company may not directly disclose commercially sensitive information to its competitors. Instead, it may pass such information on to a third party with an understanding that the third party will share the information with the company’s competitors. This is likely to have the same effect as sharing the information directly and hence treated in the same way under competition law. The key difference is that the third party could also face penalties for its participation in the information exchange.
If information is disclosed to the public, does this remove competition concerns?
Public disclosure of information will not normally harm competition, as both customers and competitors will have access to the same information.
However, there are circumstances where public disclosure of competitively sensitive information does not benefit customers and has similar effects to private disclosure of such information. This may occur when competitors use public announcements to signal how they want competitors to act in order to avoid competition.
What should I do if I receive competitively sensitive information?
If you receive competitively sensitive information from a competitor, you are assumed to have taken it into account and adjusted your conduct accordingly. When that happens, you should make a clear statement that you do not wish to receive such information and report it to the Commission.