Unilateral public announcements of prices and other commercial conditions: initial considerations for antitrust analysis

Abstract

Background: the paper discusses whether and how public announcements of prices and other commercial conditions (also called "unilateral disclosure of information", "unilateral disclosure of information" or "price signaling") made by companies, associations or unions can have anticompetitive effects, influencing the conduct of market agents. The article presents the potential benefits of public announcements, such as increased transparency and market efficiency. The article presents some cases investigated by antitrust authorities in the United States, Europe, the United Kingdom and Brazil, in which public announcements were considered as indications or evidence of anticompetitive conduct. The article highlights that public announcements can take different forms, such as interviews, conference calls, letters, or press releases, and that they can involve different types of information, such as prices, offers, demands, or future strategies.

Objective: the goal of the article is to highlight that CADE has given more attention to this practice in recent years, especially when it involves companies with a dominant position or in regulated sectors. The article also shows that CADE has categorized public announcements within the genre "influence on uniform commercial conduct", whose three categories would be invitation to cartelization, recommendation to competitors and, precisely, the unilateral disclosure of information, object of this article. The article also aims at the end, to propose a list of questions with a possible analysis methodology to identify the existence (or not) of justifications for a public announcement.

Method: exploratory and jurisprudential method, analyzing concrete cases of antitrust authorities in Brazil, the United States and Europe that involved public announcements.

Conclusion: the article concludes that public announcements can have anti-competitive or pro-competitive effects, depending on several factors, such as the market structure, content, format, and timing of the announcement. The article also suggests that CADE should adopt a rule-of-reason analysis to evaluate this conduct, and that executives of companies and associations should be cautious with their public statements.