EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
7.3 Monopolisation as a Cartel Offence Under EU law, monopolisation by a single com - pany will not be viewed as a cartel, but may be subject to the rules on abuse of dominant posi - tion under Article 102 of the TFEU. Joint monop - olisation by two or more companies may qualify as a cartel offence where the parties’ conduct amounts to an agreement or concerted practice that has an anti-competitive object (eg, in jointly raising prices, jointly taking actions to exclude others from the market, etc). 7.4 Focus on Certain Industries/Sectors The European Commission’s cartel investiga - tions continue to target a wide range of industry sectors. In recent years, the Commission con - ducted the largest number of investigations in the automotive components sector (relating to various car part cartels) and the financial sec - tor (relating to various bonds and derivatives cartels). However, the Commission has also adopted decisions in areas such as defence and pharmaceuticals, where it had not previously adopted decisions. 7.5 Use of Messaging Applications and Chat Platforms In the event that the Commission issues a request for information or conducts inspections, ephemeral communications will be treated in the same way as other information held by the com - pany under investigation, and the Commission will expect these to be preserved in the same way (see 2.2 Dawn Raids/Search Warrants ). 7.6 “No Poach” and Labour Market Allocation Conduct Under EU law, “no poach” agreements or labour market allocations between employers may be viewed as cartels affecting the market for the procurement of labour where they are agreed outside the context of legitimate agreements
actions for damages depend on various factors at national level.
7. Trends in Cartel Enforcement 7.1 Information Sharing as a Cartel Offence Under EU law, an exchange of information among competitors may amount to a cartel where it is aimed at co-ordinating the parties’ competitive behaviour or at influencing the conditions of competition. This is likely where the information exchanged is commercially sensitive and the exchange removes uncertainty between the par - ticipants as regards their market conduct. The exchange of information relating to companies’ future conduct concerning prices, quantities or other trading conditions is particularly likely to be regarded as amounting to a cartel. Detailed guidance on the assessment of exchanges of information is provided in the European Com - The European Commission is concerned about the use of AI and pricing algorithms potentially leading to anti-competitive outcomes. While the Commission recognises that algorithms can generate efficiencies, it is concerned that they may be used to facilitate collusion among competitors – eg, through being used as a tool to monitor compliance with anti-competitive agreements among competitors. The Commis - sion is also concerned that companies may use behavioural co-ordination algorithms to collude ( “collusion by code” ). The Commission’s Hori - zontal Guidelines set out when the Commission is most likely to regard the use of AI and pricing algorithms as raising concerns. The Commission has not yet issued any decisions involving the use of such tools. mission’s Horizontal Guidelines. 7.2 Use of AI and Algorithms
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