Extract

Information exchanges are currently a ‘hot topic’ for antitrust enforcers and courts in the European Union (EU) – both on the EU level and in the Member States – even though they have been around for a long time. Indeed, information exchanges have been around almost since the beginning of antitrust law itself – and this is not a coincidence. Looking at the historical development of antitrust law in various jurisdictions, the same pattern repeats itself. Whenever a jurisdiction outlaws cartel agreements outright, competitors soon recognize that the exchange of individualized current or future pricing information is a nearly perfect substitute for cartels. In the United States, Arthur Jerome Eddy published the first edition of his famous diatribe against competition in 1912, soon after actual enforcement of the Sherman Act had begun.1 He openly argued that the first-best solution would be to allow businessmen to discuss the prices they charge with their competitors, understanding very clearly that this results in collusion.