USA: Transatlantic views on information exchange in the field of competition law

This contribution is but a brief exercise in comparative competition law, having its focus on the competitive assessment of information exchange under EU competition law and US antitrust. Unlike other areas of competition law, information exchange is part of a broad area of transatlantic convergence in competition policy. Nevertheless, disparities do exist and they relate, in essence, to a more 'open-minded' approach under US antitrust, which views information exchange as being mostly neutral or beneficial for competition, in contrast with EU competition law's reservations about potential or actual anticompetitive effects. The latter is mainly supported by four elements: a broad notion of "strategic information", an excessively strict approach to indispensability, the absence of safety zones for information exchange, and an insufficiently justified concern over anticompetitive foreclosure. In our view, the more restrictive approach under EU competition law, which has had a trickle-down effect on national competition authorities, could use some correction and further alignment with the approach under US antitrust.