9 January 2009

Catch-22: The role for economics in the assessment of information exchanges under Article 81

Economic analysis has a clearly established role in the assessment of alleged infringements of Article 81 EC. It is central, for example, in establishing whether a vertical agreement results in foreclosure, or in estimating the damage suffered by a customer of a cartel. However, economics has typically played a less prominent role in establishing whether a cartel infringement has occurred. But that situation is now changing, spurred by the increased tendency of the European authorities to pursue Article 81 cases against horizontal agreements, such as information exchanges, which fall short of the classic cartel infringement.

This Brief explores the role that economics can play in cases where information sharing is alleged to infringe Article 81. We comment in particular on the “Catch-22″ that now stands in the way of enforcement officials who seek to avoid economic analysis by claiming that a restriction is anti-competitive “by object”.

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