A company that obtains information from a number of competitors (for example, to create industry statistics or to provide price comparisons) should be careful not to facilitate the flow of confidential information between those competitors. 

Two recent cases highlight the potential competition law issues.  We will then look at some practical considerations to keep in mind.

AC Treuhand

In 2009 the European Commission fined 24 companies a total of over €173 million for their involvement in two illegal cartels in relation to plastic additives used as heat stabilisers.  Since it was merely a consultant, AC Treuhand was not a participant in the heat stabilisers market.  However, it was fined as a facilitator to the cartels.

AC Treuhand unsuccessfully appealed the European Commission’s decision to the General Court and then to the CJEU.  AC Treuhand argued that because it was an administrative consultant, it was not active on the relevant markets and could therefore not be defined as being a part of the illegal agreements.  The CJEU rejected this argument and pointed to the fact that AC Treuhand had played “an essential role” in the infringements by organising and attending meetings, collecting and supplying sales data, and offering to act as moderator in the event of tension between producers. 

This case is a useful reminder for companies that obtain and process information from a number of competitors that there is a risk that they may act as a conduit for such information.  Exchanges of information between firms may be prohibited where the flow of confidential information reduces the strategic uncertainty of competitors, diminishing their incentives to compete one against the other.