Informative module the exchange of information
Exchange of information
Information exchanges are not illegal per se as they may generate efficiencies and are key for legitimate Innovation/R&D activities. In some cases, however, the exchange of confidential information between competing parties may lead to restrictions of competition, especially if it relates to sensitive information.
The exchange with competitors of sensitive information referred to the past, the present or the future may constitute a restrictive competition agreement or, in the alternative, an indication of the existence of an agreement AS IT MAY:
✓ Make the market more transparent.
Facilitating collusive practice: Strict compliance with the following guidelines is necessary for meetings with competitors' attendance.
➢ Out of caution, do follow them also in meetings without the participation of competing undertakings!
Exchange of information may take place in different ways:
Meetings between Federated Innovation Members will take the form of associative meeting. Therefore, in the case at stake, we are primarly in front of a DIRECT exchange of information.
For Antitrust law purposes, it is irrelevant that undertakings have subsequently implemented or exploited the information object of the exchange → presumption that the undertaking has taken into account the 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).
From a Competition Law point of view, the ILLEGITIMACY of the exchange of information DEPENDS on the TYPE of information exchanged
It is necessary to verify whether objects of the exchange are "SENSITIVE" INFORMATION
ASK ALWAYS YOURSELF WHETHER THE INFORMATION EXCHANGE IS NECESSARY FOR INNOVATION/R&D. If not, avoid any exchange!
✓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) anonymized data.
✓General economic data.
✓Processes, analysis methods, experiments and internal trials.
GENERALLY CRUCIAL (sensitive information)
✓Price-related topics (e.g.: discounts, planned price
✓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.
Practical guidance for meetings' attendees
- Do limit informal meetings to a
reasonable extent and 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 discussions 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 the 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 ask the legal counsel to attend meetings where the following types of information will be discussed:
a) Historical pricing and costs, unless sufficiently aggregated;
b) Any information that could provide the competitor with significant insight on non- public aspects of your competitive strategy, and vice-versa; and
c) 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 subgroups among
competitors if not strictly necessary: in
such cases, strict compliance with such
guidelines is key.
- Don't stray from the meeting agenda (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 take any steps that would create the appearance of improper activity.
- Don’t use the information received for any purpose other than the ones related to Innovation/R&D programs/activities. If not necessary, do not share the received information with commercial staff.
- Don’t use the information received for any commercial purpose.
- Don’t exchange the following categories of competitively sensitive information:
a) Current or prospective pricing;
b) Current or projected cost information;
c) Customer-specific price information;
d) Current and prospective book of business;
e) Marketing plans;
f) Plans to expand or reduce product lines or lines of business;
g) Transaction information relating to competitive elements of sales and supply agreements;
h) Competition strategies.
- Don’t create any documents:
a) Using words which could imply anti- competitive behaviour;
b) Using exaggerated statements or hyperbole with respect to competitors/ vendors; and
c) 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.
Tips for the meetings' moderator
➢ Circulate in advance the meeting’s agenda.
➢ Keep a copy of the meeting’s agenda and of the 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!