ASCOLA Competition Law series
Edited by Josef Drexl and Fabiana Di Porto
Chapter 11: Abuses of information and informational remedies: rethinking exchange of information under competition law
This chapter focuses on the relationship between abuses of dominance and information-sharing as it arises from EU, Italian and US case-law. Firstly, it explains how informational monopolists (or super-dominant firms) may infringe competition law by three different forms of ‘informational abuses’: (i) through actual or constructive refusals to exchange information; (ii) through the misuse of information provided to public regulators performing pro-competitive regulatory procedures; and (iii) through collusion to provide misleading information (outside a regulatory procedure). Secondly, it points out that many cases on Article 102 TFEU (or national unilateral-conduct rules in other jurisdictions) are enforced by imposing complex behavioural remedies that mandate an exchange of information. Such behavioural remedies resemble much traditional regulation, as regards the rationale of intervention, the institutional resources employed (e.g., they require continuous monitoring of commitments, strong sectorial expertise and dedicated resources) and the powers exercised. As a consequence, the author calls them ‘para-regulatory’ remedies, thereby distinguishing them from pure, traditional regulatory interventions. In particular, these para-regulatory remedies can conflict not only with already existing information-based regulation, but also with the traditional suspicious approach that competition law applies when it comes to transparency and the enforcement of Article 101 TFEU on restrictive agreements.
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