Article 81(1) EC prohibits a competitor from, directly or indirectly, disclosing information to another competitor that could influence its behaviour on the market. On a number of occasions, firms have argued that they publicly distanced themselves from such cartel activity. Such claims are rarely accepted however. This article first considers how the European Commission and the Community Courts have applied Article 81(1) to participation in cartel meetings: in essence, a firm’s presence at a meeting with a manifestly anti–competitive purpose implies, in the absence of explanation, participation in the cartel alleged. The article suggests that there are six requirements for a firm to publicly distance itself from a cartel, but argues that the law does not insist on a firm “blowing the whistle” to a competition authority. Finally, the article examines why the law sets the bar so high for proof of public distancing.
World Competition