“ONCE IS ENOUGH TO BE A CONCERTED PRACTICE”
In June of this year the European Court of Justice gave its decision on a referral from the Dutch Courts concerning alleged anti-competitive practice by five Dutch mobile phone service providers.
The five service providers had met on a single occasion in 2001 to discuss confidential information and the cutting of fees paid to their respective phone dealers.
The European Court of Justice held that it did not matter that the five service providers had met only once. A single meeting was capable of constituting the basis for a concerted practice, which is illegal under competition law. The court stated that an exchange of information between competitors is tainted with an anti-competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating competitors.
The court went further; in so far as the business participating in the concerted action remains active in the market in question, there is a presumption that the concerted action caused the business to behave as it did within that market, even if the concerted action is the result of a meeting held by the relevant competitors on a single occasion. It is up to the business to overturn that presumption in court by providing evidence to the contrary.
The decision is a reminder to all those who discuss their business with competitors that care must always be taken as to what information is exchanged.
For more information, please contact David Phelan dphelan@hayes-solicitors.ie or Laura Fannin lfannin@hayes-solicitors.ie