In informal discussions, I often hear the same line:
“It was just a casual chat, nothing confidential just to get a sense of the market, of prices. Everyone knows everyone anyway.”
Yet such exchanges can have serious consequences and the Court of Justice of the European Union (CJEU) is unequivocal on the matter.
📅 The example of the Portuguese banks
On July 29, 2024 (Case C-298/22), the CJEU upheld fines totaling €225 million against several Portuguese banks for having exchanged, over more than ten years, confidential and strategic information — including credit rates, margins, production volumes, and risk variables.
These exchanges were bilateral, discreet, and involved no formal agreement on prices.
Yet they were enough to constitute a restriction of competition “by object”, within the meaning of Article 101(1) of the TFEU.
⚖️ Why?
Because, according to the CJEU, for a market to function properly, each company must determine its commercial strategy independently.
Sharing sensitive data — on prices, volumes, or forecasts — undermines that independence by reducing competitive uncertainty, which lies at the very heart of market competition.
The Court emphasized three core principles:
1️⃣ Independent decision-making by companies is a fundamental guarantee of the internal market;
2️⃣ Exchanging strategic information between competitors may, in itself, restrict that independence;
3️⃣ Such conduct is presumed anti-competitive by nature, without the need to demonstrate its concrete effects on the market.
In other words: even without any intent to collude, the mere exchange of confidential information can be enough to constitute an unlawful agreement.
🧠 The broader significance
True, this case concerned the banking sector a concentrated and heavily regulated industry.
But the message has universal reach.
In many contexts trade associations, joint ventures, public tenders, or market benchmarking exercises the line between legitimate cooperation and prohibited coordination can easily blur.
It’s not the form of the exchange that matters, but its nature and context.
Even a simple sharing of forward-looking or individualized information can distort competition.
💬 This judgment is a reminder that competition compliance is not limited to avoiding cartels or formal price-fixing agreements.
Even an informal conversation can expose a company and its executives to liability.
📌 Vigilance is the best compliance strategy, and when in doubt… it’s safer to stay silent than to share.
Source : https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:62022CJ0298
