Growing Antitrust Risk Of Information Exchanges

In a recent judgment on the exchange of information between competitors, the Court of Justice of the European Union (ECJ) issued several findings that, unfortunately, contribute to greater uncertainty and therefore to a growing antitrust risk for undertakings (C-298/22 - Banco BPN).

It is long established that the exchange of information itself (referred to by the ECJ as a 'standalone exchange of information') can have the adverse effect of violating the cartel prohibition. This means that there is no need for an additional anticompetitive agreement, e.g. to actually coordinate prices on the basis of the information exchanged. In its recent judgment the ECJ found that such a standalone exchange of information may also constitute a restriction of competition by object. In the case of a by object restriction, it is not necessary to prove that the exchange of information had an adverse effect on competition. As a result, it has become significantly easier for