The case, which concerned alleged illegal information exchange between the publishers Gyldendal, Cappelen Damm, Vigmostad & Bjørke, Aschehoug, and their JV Bokbasen, provides important clarifications on what constitutes illegal information exchange and what determines if a price is future-oriented.
The case concerned alleged illegal information exchange between Norway's four largest publishers through an online book database operated by Bokbasen. The case has been ongoing since the Norwegian Competition Authority's ("NCA") carried out unannounced inspections back in 2018. The NCA concluded that the publishers had shared competitively sensitive information, including future prices, through a subscription service offering publishers full access to the book database. According to the NCA, this information exchange constituted a restriction of competition 'by object'. The involved parties have consistently maintained that they have not exchanged competitively sensitive information and that there are no factual or legal basis for imposing fines in the case.
Four Norwegian publishers and a JV, Bokbasen AS ("Bokbasen"), were fined a total of NOK 545 million in November 2022 for violations of the prohibition against anti-competitive cooperation in Section 10 of the Competition Act and Article 53 of the EEA Agreement, both corresponding to article 101 TFEU.
In its decision on 23 November 2023, the Competition Appeals Tribunal ("CAT") unanimously overturned the NCA decision.
The decision cannot be appealed by the NCA, and the fines imposed on the parties are therefore waived. Thommessen assisted one of the publishers throughout the entire process, which has now reached its final conclusion with the CAT's decision.
In the CAT decision, the publishers and Bokbasen have been fully vindicated. This is the first time that the NCA's decision imposing fines for violation of Section 10 of the Competition Act (art. 101 TFEU) is overturned on appeal. The CAT's decision provides important clarifications on what it takes for information exchange between competitors to constitute a restriction of competition 'by object':
- The main criteria for assessing whether information exchange constitutes a "concerted practice" under Section 10 of the Competition Act, is whether the exchange removes uncertainty between the parties, and whether the exchange is characterized by reciprocity. The requirement of reciprocity is fulfilled if the exchange takes place within a private channel.
- The assessment of whether an information exchange constitutes a restriction "by object", also entails a requirement of removed uncertainty following from the exchange. Thus, there is a certain overlap between the two criteria of the cartel prohibition in cases of information exchange. The CAT only assesses the "by object" criterion, and does not conduct a detailed assessment and conclusion as to the "concerted pratice" criterion. The CAT's practical approach to this technicality contrasts with the NCA's unnuanced and repetitive approach.
- The requirement that the cooperation must 'reveal in itself a sufficient degree of harm to competition' for there to be a violation 'by object', means that robust and reliable experience must show that the cooperation is harmful to competition. Both the nature of the information and how it is exchanged are relevant to whether the information exchange constitutes a violation 'by object'. The CAT iterates that competitively sensitive information particularly refers to information about future prices, volumes, or strategy. However, a central part of assessing whether the information exchange has the object of restricting competition, is how the information exchange takes place. The CAT's assessment is that the exchange of competitively sensitive information in private channels normally restricts competition by object.
- Contrary to what was asserted by the NCA, the information exchanged does not need to be "equally accessible to all customers and competitors," in order for the exchange to escape the 'by object' rule. Based on an analysis of case law, the CAT establishes that this is a fallacy. What follows from case law is that sharing strategic information in private channels is a violation 'by object', unless the information shared is equally accessible to everyone.
However, the most significant clarifications pertain to the central question of the case, namely whether the prices uploaded by the publishers in the book database were future prices. The CAT considers various factors that are deemed relevant to determine whether the prices were genuinely binding. The CAT consistently bases its reasoning in economic theory and practice throughout its decision, providing important clarifications and elaboration on delineations in this regard:
- The legal obligations and commercial realities are decisive in the assessment of whether a price is a future price for the purposes of competition law.
- It is not correct, as asserted by the NCA, that the prices must be fully binding for the publisher at the time of sharing in order to not be considered future prices. It was confirmed by the NCA during the oral hearing that by 'fully binding', the NCA referred to whether the publishers were fully committed to the prices so that they could not be revised after having announced the prices to the public. The CAT points out that the NCA relies on an incorrect understanding of the EFTA Surveillance Authority's guidelines, and that the NCA's interpretation is not based on the case law of either the EU or EFTA Court. The CAT further notes that the NCA's argument on this point effectively reverses the burden of proof in cases of information exchange, making it the parties' responsibility to prove that the prices are not future, contrary to the NCA having to prove that the exchanged information is competitively sensitive.
In its specific assessment, the CAT finds that a wide range of factors, including legal obligations and commercial realities, indicate that the prices uploaded by the publishers in the book database were in fact current prices that were binding upon the publishers.
The CAT then proceeded to assess how the information was exchanged and noted that in this case, the information was not exchange through a private channel, but rather it was published in a database that was openly accessible to all industry players, including customers. Additionally, the CAT emphasized that the information was also shared with end customers almost simultaneously, since the retailers' online bookstores were automatically updated with new information from the book database.
Sharing of information outside private channels
Finally, the CAT states that the publishers' sharing of information through a non-private channel may constitute a restriction of competition by object. Here, too, the CATs assessment is based on economic theory. Several statements are worth noting:
- Economic theory provides robust and reliable evidence that also the exchange of information outside of private channels may constitute a 'by object' restriction if it entails sharing future and non-binding prices in a manner which provides little or no benefit for customers and consumers. According to case law and economic theory, this presupposes mutual announcement of non-binding prices in order to constitute an infringement 'by object'.
- If there is doubt as to the customers' utility of the information, or the degree of utility, it is not unequivocal that competition is restricted. In such cases, an assessment of the effects of the exchange needs to be conducted, rather than establishing a violation 'by object'.
In the specific assessment, the CAT pointed out that since the prices in the book database were binding for customers who pre-order books, and that the information thus had utility for customers, an assessment of the effects of the information sharing is required in order to determine whether the sharing restricted competition.
Therefore, the CAT concluded that the publishers' use of the book database did not constitute a violation 'by object' under Section 10 of the Competition Act and Article 53 of the EEA Agreement.
Partner Siri Teigum, associate partner Eivind Sæveraas, and associates Karin Johanne Nordby and Brendan Kettermann acted for Gyldendal, one of the publishers, before the CAT. Over the past five years, several individuals from Thommessen's EU and Competition Law department have contributed to ensuring that Gyldendal, the other publishers and Bokbasen can finally put this case behind them.