Guidelines on Exchange of Information
Introduction: exchange of information and Competition Law
The present guidelines are aimed at providing Federated Innovation (“FI”) members with more detailed information on the legal framework of exchange of information, under a Competition law perspective, alongside at §A a practical checklist on acceptable information exchanges during Innovation/R&D activities ("Dos" and "Don'ts"). We also provide some practical tips for the meetings’ moderator (§B).
Information exchanges are not illegal per se as they may generate efficiencies and are key for Innovation/R&D activities, which are actually based on data sharing/dissemination among market participants.
In some cases, however, exchange of confidential information between competing parties may lead to restrictions of competition; particularly where it enables undertakings to be aware of their competitors’ planned market strategies.
Hence, Competition Law set forth specific limits to the types and quality of information that can be exchanged between competitors without infringing antitrust rules.
Broadly speaking, in the context of Innovation/R&D programs and/or activities, pertinent and necessary confidential information (such as know-how and industrial secrets, technical processes, etc.) could be shared among technical staffs of competing parties.
- Ask always yourself whether such conditions are met: if not, avoid sharing information!
Please bear in mind that the compliance with the following guidelines is essential in the context of meetings with competitors’ attendance.
- Out of an abundance of caution it is advisable to follow such guidelines also in meeting without the participation of competing undertakings.
What arises more issues, from a Competition Law perspective, is the exchange with competitors of so-called “sensitive information”.
The illegitimacy of the exchange of information depends on the type of information exchanged. Therefore, in practice, it is necessary to verify whether objects of the exchange are “sensitive information”.
The notion of “sensitive information” includes:
- Price-related topics (e.g.: discounts, planned price changes).
- Interests and fees;
- Business strategies;
- Implementation or start production of the technologies that have not yet been launched on the market;
- Internal strategic information on the product and volume portfolio, capacity, investments;
- Division of markets or purchasing sources, for example based on geography or clients;
- Details on the relationships with suppliers: boycotts and agreements to stop sales or purchases from specific companies.
The exchange of sensitive information referred to the past, the present, and particularly the future may constitute a restrictive competition agreement, or, in the alternative, an indication of the existence of an agreement as it may :
- Facilitate the participant undertakings to better know the commercial strategies of the competitors;
- make the market more transparent;
- reduce the uncertainty on the competitors' behaviour that should characterise the performance of an entrepreneurial activity in a free competition regime.
On the contrary, it is generally not considered to be crucial the exchange of the following information:
- General information, that do not allow to draw conclusions in relation to strategic topics or other sensitive business topics;
- publicly available information or historical information;
- aggregated data/(actually) anonymised data;
- general economic data;
- processes, analysis methods, experiments and internal trials.
Modalities and characteristics of the exchange
Exchange of information can take different forms, not only based on the type of information exchanged but also on the modalities in which the exchange takes place.
A general distinction can be made between:
Direct exchange of data/information (e.g.: meetings, participation to associative meetings, etc.); and
Indirect exchange of data/information (e.g.: category association, common undertakings).
Meetings between FI Members will take the form of associative meeting. Therefore, in the case at stake, we are primarily in front of a direct exchange of information, in some instances, depending on the groups and layers, among competitors.
Additional features that are usually taken into account by Antitrust Authorities in assessing an exchange of information relate to both the characteristics of the shared information (e.g.: their accessibility, sensitivity, identifiability) and of the exchange of information (e.g.: the frequency with which it was shared and the number of competitors with whom it has been shared).
Presumption of the use of shared information
Whatever the modality used by competitors to exchange data, in any case, for Antitrust law purposes, it is irrelevant that undertakings have subsequently implemented or exploited the information object of the exchange.
There is indeed a general presumption that the undertaking has actually taken into account the data of which it has become aware, in order to determine its commercial conduct.
To overcome this presumption, the undertaking should demonstrate that it has publicly and clearly dissociated itself from the reached anti-competitive agreement (e.g.: by way of declaring it in the minutes during an associative meeting).
A. Practical guidance for meetings’ attendees: do’s and don’ts
Do limit informal meetings to a reasonable extent and possibly for the exchange of ancillary technical information only.
Do have formal meetings pursuant to a written agenda pre-approved . A brief email that confirms the meeting and the topics to be discussed is fine; there is no need to be more formal or more detailed.
Do stick to the agenda topics and defer other issues to next meetings.
Do limit the persons to whom shared information is available and the purposes for which it can be used (it should only be used for Innovation/R&D purposes within the Federated Innovation activities).
Do seek guidance from legal counsel whenever questions arise as to the appropriate scope of discussions or information exchange; if a potentially improper topic is raised, cut off the discussion. It is safest to err on the side of caution.
Do have legal counsel attend meetings where the following types of information will be discussed:
- Historical pricing and costs, unless sufficiently aggregated;
- Any information that could provide the competitor with significant insight on non-public aspects of your competitive strategy, and vice-versa; and
- Any topic that could lead to disclosure of competitively sensitive information (see DON'Ts column).
Do assume that electronic versions of documents will exist forever , even after they have been deleted, and assume that all documents will be read by a government agency or opposing attorney.
Do take active steps to stop the discussion immediately, if you think a discussion may be problematic.
Do tell everyone at the meeting that you are not agreeing to any joint action going beyond the envisaged Innovation/R&D cooperation and leave immediately, if the discussion does not stop.
Do make sure your immediate departure is recorded in the minutes.
- Don’t create informal subgroups between competing parties, if not strictly necessary for Innovation/R&D activities. In such cases, strict compliance with such guidelines is key.
Don’t stray from agenda topics to the reasonable extent (in particular, with respect to straying into sensitive areas).
Don’t comment on the competitor’s historic , current, or planned prices, business strategy, or capital investments, and don’t solicit comments on the same topics for your company.
Don’t invite commercial people to the meetings , if not strictly necessary.
Don’t take any steps that would create the appearance of improper activity.
Don’t use information received for any purpose other than the ones related to Innovation/R&D programs/activities.
Don’t use information received for any commercial purpose.
Don’t exchange the following categories of competitively sensitive information:
- Current or prospective pricing;
- Current or projected cost information;
- Customer-specific price information;
- Current and prospective book of business;
- Marketing plans;
- Plans to expand or reduce product lines or lines of business;
- Transaction information relating to competitive elements of sales and supply agreements;
- Competition strategies.
Don't create any documents:
- Using words that can imply anti-competitive behaviour;
- Using exaggerated statements or hyperbole with respect to competitors/ vendors;
- Suggesting that any customer/supplier (or group of customers/suppliers) is "captive."
Don’t delete emails or other records of commercially sensitive information from competitors – immediately inform Legal Department.
Don’t assume that sensitive information can be discussed on the basis that no one else objects.
B. Practical tips for the moderator
Circulate in advance the meeting’s agenda;
- Keep a copy of the meeting’s agenda and of relevant documentation, if any;
- Stick to the meeting’s agenda;
- Defer other topics to next meetings;
- Stop attendees that indulge in sharing sensitive information;
- Keep a copy of the minutes that can also be very succinct;
- Identify attendees and name them, together with their role, in the meeting’s minutes;
In case of doubt, seek legal assistance!