One sentence summary: The Draft Communication from the Commission on Guidelines on the Applicability of Article 101 TFEU (the ‘Draft Guidelines’) features an eagerly awaited chapter on information exchanges, but may fail to satisfy those calling for more legal certainty.
Among the innovations of the Draft Guidelines, anticipated to replace the 2001 Guidelines, is a chapter on information exchanges. This chapter, on which this note focuses, will without doubt attract criticism, but is to be welcomed. It does not establish safe harbours and emphasises the need for a case-by-case analysis. This note argues that this may be disappointing from a practitioner’s point of view, but that this inevitably results from the diversity of information exchanges.