The European Court of Justice has recently ruled that a company can be found guilty of colluding with its competitors even if they meet on just one occasion and the meeting does not result in higher prices for consumers.

In this case, the Dutch Competition Authority had ruled that five Dutch mobile telephone operators engaged in a ‘concerted practice’ by discussing the reduction of payments to mobile phone dealers at a single meeting. The case went to appeal before a Dutch court, which asked the European Court to clarify whether a single meeting could amount to a concerted practice. It was also asked whether such conduct could be regarded as anti-competitive even if there is no resulting impact on consumer prices.

The Court said that any exchange of information between competitors is liable to be anti- competitive if it reduces the amount of uncertainty as to the anticipated conduct of the companies. What matters is whether the meeting(s) which took place afforded them the opportunity to take account of information exchanged with their competitors in order to determine their conduct, rather than the number of meetings held. The court also said that there does not need to be a connection between that practice and consumer prices: competition rules are designed to protect not only the interests of competitors and consumers, but also to protect the structure of the market.

The court also said that unless there is evidence to the contrary, it should be presumed that a causal connection exists between the meeting and the companies’ subsequent behaviour.

In light of this ruling, companies cannot afford to downplay the possible consequences of any contact with their competitors. It eases the burden on competition enforcement authorities by clarifying that an isolated exchange of information between competitors may constitute a concerted practice: it is not necessary to establish there has been on-going interaction. It is no defence to claim that the exchange of information did not harm customers or competitors and companies must overcome a presumption that they took account of the information exchanged.