In the normal course of business, undertakings exchange information on a variety of matters with no risk to the competitive process. Indeed, competition is often enhanced through the sharing of information, and as a general proposition, the more informed consumers are, the more effective competition is likely to be.
However, concerns may arise where undertakings which are competitors exchange information. In particular, this will be the case where competitors exchange information which is competitively sensitive information.
Competitively sensitive information includes information relating to price, elements of price or price strategies, customers, production costs, quantities, turnover, sales, capacity, product quality, marketing plans, risks, investments, technologies and innovations. Generally, information relating to price and quantities (information concerning sales, market shares, sales to particular customer groups or territories) is the most competitively sensitive.
For further information, please refer to the Guideline on the First Conduct Rule (in particular, paragraphs 6.38 to 6.49).
Hypothetical example
A trade association for junk owners collects from and circulates to its members information on their respective proposed future prices. This includes information as to the proposed prices for specific journeys. The information is not made available to the public and is circulated to members in advance of a seasonal price review by the association members.
Absent a decision of the association giving rise to the information exchange or evidence of an agreement between members to engage in the information exchange, the Commission would infer that this arrangement is implemented as part of a concerted practice with the object of harming competition. The conduct allows the junk owners to adjust their future pricing to reflect the proposed pricing of competitors and thus reduces price competition in the market. The information exchange arrangement is an indirect form of price fixing.
The Commission would also regard the conduct to be Serious Anti-competitive Conduct under the Ordinance.