Kilpailijoiden välinen tiedonvaihto/EN

Suomeksi

Information exchange between competitors is a two-sided area of competition law: some information exchange is entirely permitted, or even improves how markets function, but exchanging sensitive commercial information can, by itself, already constitute a prohibited restriction of competition without any separate agreement.

Avainkohdat

• Mistä on kyse: The exchange between competitors of information concerning future pricing, output volumes or other strategic conduct can be prohibited, even where no actual agreement has been concluded.
• Miksi sillä on kaupallista merkitystä: Information exchange can meet the criteria for a concerted practice simply on the basis that it reduces market uncertainty about competitors' future conduct — an actual change in conduct need not be demonstrated.
• Mikä menee useimmin pieleen: Merely receiving information at a meeting or by email can be sufficient to amount to participation in a prohibited practice, if the recipient does not publicly distance itself from the information or report it to the authority — silence can be interpreted as acceptance.

When Information Exchange Is Problematic

The risk increases in particular when the information exchanged is:

• forward-looking (e.g. planned price increases, changes in production capacity) rather than historical;
• company-specific rather than aggregated industry-level statistics;
• recent and frequently updated; and
• shared directly between competitors or through a third party (e.g. a trade association) that enables individual companies' data to be identified.

These assessment criteria are not merely practical rules of thumb — they correspond to the assessment framework set out in Chapter 6 ("Information exchange") of the European Commission's Guidelines on the applicability of Article 101 TFEU to horizontal cooperation agreements (2023). Under the Guidelines, the competition law risk of information exchange is assessed in particular by reference to how strategic the information exchanged is (e.g. future prices, quantities, costs or marketing plans), how large a proportion of the market the participating undertakings cover, how aggregated the information is, how old or current it is and how frequently it is exchanged, and whether the information is otherwise publicly available.

The Court of Justice has further confirmed that prohibited information exchange does not require repeated or long-lasting contact: even a single meeting or instance of information exchange between competitors can be sufficient to constitute a restriction of competition by object if it is capable of removing uncertainty concerning the future market conduct of the participating undertakings. In that case, it is not necessary to demonstrate a separate, actual effect on the undertakings' market conduct, nor a direct link to consumer prices — it is enough that the information exchange was capable of reducing the uncertainty that normally exists between competitors.

Permitted and Problematic Industry Cooperation

Aggregated, sufficiently old and anonymised industry statistics are, as a starting point, permitted and often useful for market transparency. The line is crossed once the statistics enable the identification of an individual competitor's conduct, or where the information exchanged specifically concerns future pricing.

Indirect Information Exchange and Hub-and-Spoke Arrangements

Prohibited coordination does not require direct contact between competitors. In a so-called hub-and-spoke arrangement, two or more competing undertakings ("spokes") exchange commercially sensitive information through the same third party ("hub") — for example, a common supplier, distributor, online platform or trade association — so that competitors' conduct can in fact become coordinated without them ever having been in direct contact with each other.

The Court of Justice has addressed this kind of indirect, platform-mediated information exchange in the Eturas case. In that case, Lithuanian travel agencies used a shared electronic travel booking system, whose administrator sent users a notice about a maximum discount cap and technically restricted the granting of larger discounts. According to the Court, travel agencies that were aware of the content of the notice can be presumed to have accepted and participated in a concerted practice, unless they rebut that presumption — for example, by publicly distancing themselves from the practice, reporting it to the competition authority, or demonstrating in some other way, such as showing that they in fact continued to grant discounts exceeding the cap.

Chapter 6 of the Commission's 2023 Guidelines, on information exchange, also expressly extends its assessment to indirect information exchange through a third party, not only to direct contact between competitors. In Finland, the FCCA has examined hub-and-spoke risk in particular in the situation where competing undertakings use the same pricing algorithm or platform provided by a third party (see below).

Pricing Algorithms and AI as a Competition Law Risk

The use of automated pricing tools and AI does not remove competition law liability — on the contrary, it can create new risks comparable to information exchange. According to an FCCA study, algorithms can enable the coordination of competitors' conduct in three distinct ways:

1. an algorithm implements a cartel already agreed in advance more quickly and precisely than a human could;
2. several competitors use the same third-party pricing algorithm or platform, creating an indirect information-exchange channel of the hub-and-spoke type described above between competitors, without them ever being in direct contact with each other; and
3. independently operating algorithms belonging to different undertakings arrive at mutually aligned, profit-maximising pricing strategies without any express agreement or even awareness of each other's conduct ("tacit" or algorithmic collusion) — this is, from the perspective of current competition law based on agreement or concerted practice, the most open to interpretation and the hardest to reach.

Chapter 6 of the Commission's 2023 Guidelines, on information exchange, also addresses the use of algorithms and technology platforms as part of the assessment framework for information exchange. According to Fondia's practical interpretation, this means, among other things, that an undertaking cannot escape liability merely on the ground that a pricing decision was made by an algorithm rather than a human — in practice, competing undertakings should avoid using the same pricing tool that combines or shares competitively sensitive information, particularly in concentrated markets.

Käytännön huomio

In 2016, the UK Competition and Markets Authority (CMA) fined two poster and frame sellers operating on the Amazon marketplace (Trod Limited and GB eye Limited), which had agreed not to undercut each other's prices and used automated price-monitoring and adjustment software to maintain the agreement in practice. One party was fined GBP 163,371, the other received immunity on the basis of having reported the conduct. The case is from the United Kingdom and is therefore not an EU court ruling, but it illustrates well that automating pricing does not remove liability — using software as a tool to implement an agreement can, on the contrary, serve as aggravating evidence.

Käytännön huomio

If a client attends an industry meeting at which another party begins to share detailed, forward-looking pricing information, the recommended course of action is to leave the meeting immediately and document the departure and its reason — mere passive presence can constitute sufficient grounds for participation.

Information Exchange During Merger Due Diligence

During the preparation of a merger, competing parties remain legally independent and separate undertakings right up until completion (closing) of the transaction. It follows that their exchange of information during due diligence is subject to the same Article 101 TFEU information-exchange rules as any other exchange of information between competitors — this risk exists separately from, and regardless of, any so-called gun-jumping issue (the premature implementation of a merger in breach of the Merger Regulation). The exchange of detailed information about future pricing, customer-specific contract terms or commercial strategy is particularly problematic before the necessary competition law clearances for the merger have been obtained.

In the Altice / PT Portugal case, the Commission fined Altice EUR 124.5 million for infringing Articles 4(1) and 7(1) of the Merger Regulation (Case M.7993). One of the key pieces of evidence of premature exercise of control was that Altice had received and actually used PT Portugal's commercially sensitive information — including customer and pricing data — already before the merger was approved. The General Court upheld the Commission's decision in its entirety, and the Court of Justice in turn upheld the General Court's judgment on appeal.

An established practical risk-management method for this is the so-called clean team arrangement, under which the most competitively sensitive information (e.g. customer-specific pricing, margin and cost data, bidding strategies) is restricted to a small team separate from the buyer's operational business and bound by confidentiality undertakings — often assisted by outside advisers — and is not shared with persons responsible for the business before completion of the transaction.

See also Competition Law Clauses in M&A Agreements, which discusses the clean team practice from the perspective of managing gun-jumping risk. The risk discussed in this article is conceptually a different matter: information exchange at the due diligence stage can itself constitute a prohibited exchange of information between competitors under Article 101 TFEU, entirely regardless of whether a separate assessment under the Merger Regulation results in a gun-jumping infringement.

Käytännön huomio

Limit the commercially sensitive information shared in due diligence materials to as aggregated or historical a form as possible. If it is necessary to exchange detailed, recent, forward-looking information (e.g. customer-specific prices or margins) already before completion of the transaction, use a clean team arrangement and document both the scope of the information shared and the access rights granted.

See Also

• Cartels and Horizontal Restrictions of Competition
• The FCCA's Investigative Powers and Dawn Raids
• Competition Law Clauses in M&A Agreements

Sources

Lainsäädäntö ja lähteet tarkistettu 6.9.2026.