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Conspiracy Theory

It seems that with its June decision in T-Mobile Netherlands BV v. Raad van bestuur van der Nederlands Mededingingsautoriteit, the European Court of Justice is sending a message: Don't even talk about it. The court ruled that a "concerted" anti-competitive practice can result from the exchange of a single piece of information at a single meeting between competitors.

The decision has broad implications for any contact between competitors and for the exchange of information in trade associations; moreover, in arriving at its conclusion the ECJ enunciated several corollary rules that lower the threshold for proving an antitrust violation under European Union law.

The Netherlands Competition Authority ruled that the companies had entered into a concerted practice and imposed a EUR88 million (almost $129 million) fine.

The companies appealed to the Dutch Appellate Court, which asked the ECJ to address various points of law, including the criteria involved in deciding whether a concerted practice had an anti-competitive object; the scope of the presumption of causal connection between a concerted practice and market conduct; whether the presumption applied in the case of a single meeting between competitors; and whether prosecutors had to establish harm to consumers.

"We're talking about a very small and transparent market with only five operators where everyone knew exactly what their competitors were charging in terms of monthly fees, minutes and equipment subsidies," he says. "The only invisible competitive parameter was the commission paid to distributors and that's what the operators discussed at the meeting."

To be sure, the decision does not state that a single meeting will always give rise to a concerted anti-competitive practice.


Julius Melnitzer

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