Helen Saulnier 
Exchanging information and facts with opponents can be a minefield. On 29 November 2022, the Norwegian Levels of competition Authority (NCA) fined Norway’s 4 largest guide publishers and a database supplier a whole of NOK 545 million (close to EUR 52 million) in a special hub-and-spoke info trade scenario. This is only one particular of quite a few information exchange circumstances becoming pursued by the NCA and in 1 of them the events might encounter even bigger fines.
The textbooks databases case
In January 2018, the NCA carried out inspections at the premises of the 4 biggest publishing properties in Norway (the Publishers), and Bokbasen, a company of digital expert services for the publishing field.
Bokbasen is jointly owned by the Publishers and generates infrastructure for electronic options for the business. The expert services are available via distinctive membership types and made use of by tiny and huge publishers, bookstores, libraries and universities.
The Publishers, who alongside one another make up around 90% for each cent of the Norwegian guides sector, were being all subscribed to Mentor Forlag, a membership utilized to submit and entry information about publications, which include future releases, these kinds of as release dates and long run rates. After submitted, the information gets readily available for all other subscribers, these as bookstores or educational facilities obtaining inventory, but also for competing publishers with the similar subscription. In addition to their publishing activities, all of the Publishers are energetic on the downstream sector for direct gross sales to finish prospects.
Next further investigations, the NCA issued a assertion of objections to the Publishers and Bokbasen in September 2020, to which all replied in January 2021.
The NCA’s final decision
On 29 November 2022, the NCA fined the Publishers and Bokbasen for illegally exchanging foreseeable future book selling prices and other competitively delicate facts considering the fact that 2009. The NCA took the situation that the details exchange constituted a by-item infringement of Part 10 of the Norwegian Competition Act, which corresponds in material to Article 101 TFEU.
Whilst the entire text of the choice has not been posted but, the NCA states in its press release that the Publishers, by their use of Bokbasen, shared and gained competitively delicate data about future book releases and that this details supplied the Publishers with a “comprehensive overview” of every other’s market perform. The NCA additional concluded that the data was systematically entered into the databases by the Publishers, being aware of that it would be available to competition and that this may perhaps have led to bigger price ranges for finish consumers.
When Bokbasen did not disclose any competitively delicate data about its individual organization, it was fined for acting as an middleman that facilitated the trade of information and facts amongst the Publishers. The NCA states that the information submitted to Bokbasen would have been complicated for the Publishers to receive via other indicates and that the membership presented by Bokbasen presented the Publishers with responsible and easily accessible information and facts about their competition.
As a final result, the NCA concluded that the details exchange built it less difficult for the Publishers to coordinate costs and publications, which may have led to enhanced selling prices and a diminished range of guides for end clients.
The NCA’s conclusion may well be appealed to the Level of competition Tribunal. Some of the Publishers have already said that they intend to charm the determination. A ruling in the appeals scenario can be envisioned in the 2nd 50 percent of 2023. By then, one more information and facts exchange situation may perhaps by now have been made the decision – exactly where the stakes are even increased.
The price tag hunters situation
In a scenario involving the 3 premier grocery vendors in Norway (the Merchants), the NCA has notified the functions in a assertion of objections that it intends to problem fines totalling NOK 21 billion (roughly EUR 2 billion) for anti-aggressive data trade. Like in the Publishers situation, the NCA appears to refrain from categorizing the cooperation as a cartel, but the notified fines would be unprecedented for a national selection.
Since 2011, the merchants have reportedly agreed to give just about every other entry to each other’s outlets, for the goal of acquiring true-time details on shelf selling prices. In exercise, workers (so-termed “price tag hunters”) have been utilised to collect the rate information from competitors’ shops by physically moving into the suppliers and scanning shelf rates.
In the NCA’s preliminary evaluation, the practice constituted an infringement by item. This is dependent on the NCA’s preliminary locating that the Vendors had utilised the collected pricing information to coordinate prices and cooperate in a way that may well have led to bigger grocery selling prices in Norway. The NCA considered that the information exchange weakened the Retailers’ incentives to decrease their costs.
According to community statements both equally from the Shops and from the NCA alone, the NCA had been knowledgeable about the agreements and the use of “price hunters” considering that the commencing of the cooperation. The interaction presumably took area on an informal foundation. Like the EU Commission, the NCA earlier could grant unique exemptions from the competitiveness rules subsequent the formal notification of agreements, but this method was abolished upon the entry into drive of the latest Competition Act of 2004. Whilst functions however in theory are cost-free to technique the NCA and inform it of their prepared agreements, the cost hunters circumstance illustrates that this tactic does not do away with the hazard affiliated with probable anticompetitive agreements and practices.
In a press release, the NCA states that the investigation initiated quite a few yrs afterwards was triggered by a interval of enhanced action from the Stores gathering price tag info. The investigation was specially aimed at examining the pricing information flows and the genuine exercise of gathering the information and facts in a lot more depth.
In mild of the NCA’s position that the practice constituted an ‘object’ infringement, it seems probably that the NCA’s prior expertise of the subject will receive further interest should the NCA challenge fines of the magnitude indicated.
The NCA is probable to conclude the make any difference in 2023. Must the NCA go ahead and situation the notified fines, the Stores have by now indicated that they would enchantment a final decision to the Opposition Tribunal.
Other ongoing facts trade situations in Norway
The NCA now also has several other information and facts exchange circumstances in the pipeline. It is investigating suspected anti-competitive details exchanges inside a health and fitness-associated marketplace and in the markets for relocation services and construction products and services. These investigations have been initiated through 2021 and 2022 when the NCA carried out inspections as a reaction to problems about competitively sensitive information and facts remaining exchanged concerning rivals in these sectors. Past the details in the push releases, little is publicly known about which suspected procedures the NCA is investigating.
Comment
Irrespective of the outcome of the appeals in the guides database scenario and the other ongoing situations, they emphasize the authentic level of competition regulation chance related to competitors’ access to info shared with just one or a lot more 3rd get-togethers.
In the NCA’s press release in the publications database circumstance, there are no indications that the Publishers’ access to rate facts on other publishers’ new releases was an intentional element of the service presented by Bokbasen or that the Publishers made use of the procedure with a perspective to obtaining these kinds of info. If so, the cooperation does not stand out as a common hub-and-spoke cartel. If the facts access was in fact only an incidental aspect of the program, this would make the case an abnormal illustration of data sharing, not the very least in light of the substantial fines that sum to close to 10% of the concerned companies’ yearly group turnovers in 2021.
The price tag hunters situation stands out not only for its potential file fines but also because the details trade anxious genuine-time rates alternatively than potential price ranges. Outside the house of cartel cases, information exchanges would commonly only be viewed as as infringements if they concerned foreseeable future selling prices or perform, as reflected in paragraph 448 of the Commission’s 2022 draft Horizontal Recommendations. The information and facts exchange also occurred in the context of an agreement the NCA evidently was informed about decades back. Whilst it remains to be noticed whether the NCA in the conclusion will pick to situation the indicated fines, the circumstance however illustrates that the NCA does not shy away from cracking down on facts exchange scenarios, specifically outdoors of the far more regular cartel circumstances.
The sizeable fines in the books databases situation and likely in the rate hunter conditions, together with ongoing investigations in various other facts exchange situations, spotlight the will need to consider information entry concerns quite diligently in all jobs that involve rivals. The point that the information and facts trade requires place in the context of a legit undertaking or practice does not protect against the NCA from issuing important fines, even at concentrations otherwise found in regular cartel cases.
