Abstract

The scope of the work is to compare the Us, Euand Italian antitrust law and practices concerning the exchange of sensitive information among competitors. The article reports the main conditions where an exchange of information among undertakings could give rise to antitrust concerns in the Us and Eucase law. While in the Us the exchange of information among undertakings is normally considered unlawful only when it generates tangible or at least foreseeable anti-competitive effects (which are ascertained at the completion of a rule of reason analysis); conversely, in Europe the antitrust agencies widen the circumstances in which the exchange of sensitive information is considered per se illegal, without the need of demonstrating any evidence of the anti-competitive effect in the relevant market. The author reaches to the conclusion that the Ec law provides an excessively rigid and inefficient antitrust regulation on the exchange of information, while in certain circumstances the Eulaw could forbid exchange of information which does not generate any anti-competitive effect or efficiencies (for example reduces information asymmetries for the benefit of consumers and/ or competitors). The author suggests avoiding any per se rule analysis. To ascertain a violation of art. 101 Tfe, a rigorous analysis of the market characteristics and the actual or potential effects of exchange of the information in the competitive dynamics is needed, the author says. This of course, would require the Eucompetition authorities to fulfil a higher burden of proof; this, concludes the author, is the necessary price to pay to avoid antitrust prohibitions which go far beyond the effective protection of competition.