Depending on whether an agreement or other behaviour has an effect in the entire EU or not, EU competition law or national competition law (and enforcement) applies. Competition law prohibits agreements that restrict competition, unless there is a justification for them.
There are different types of agreements with different rules. The rules for agreements between companies at the same level of the production chain are generally stricter than those for companies at different levels of the production chain. The iSHARE Trust Framework facilitates both horizontal and vertical exchanges of information.
What is problematic under competition law, is the exchange of information that is sensitive to competition, such as price lists, data on turnover, etc. Restrictive effects may, for instance, be found in cases where exchanges of information enables companies to be better aware of each other’s market strategies. Agreements that have as their purpose or effect the restriction of competition (such as price fixing, market sharing) are very likely to be prohibited. On the other hand, a justification for exchanging information can be found if this leads to efficiency gains. To determine whether there are indeed efficiency gains, three conditions must be taken into account:
- The efficiency must at least be partially passed on to the consumers which are affected by the restriction (e.g. quicker delivery of products or reduction of search costs).
- The agreement must not restrict competition more than is necessary for the attainment of the efficiency gains (proportionality requirement).
- The restriction of competition must not result in the total elimination of competition. As a result, competition law leaves room for such agreements.
The iSHARE Trust Framework could lead to efficiencies (e.g. in terms of costs or by removing barriers).
It is important to carefully draft the agreements and always assess whether they could restrict competition, and whether a restriction could be justified by – for example – efficiencies. Admittedly, it is mainly up to the participants sharing data to comply with competition law, but the iSHARE Trust Framework itself is not designed in a way to directly or indirectly have an adverse effect on competition. In all cases, an important principle of the iSHARE Trust Framework is to create a level playing field.
Competition law also deals with the abuse of a dominant position. Companies can also have a dominant position collectively. Whether there is a dominant position, is assessed on the basis of market shares, amongst other factors. When there is a (collective) dominant position, it is important to assess whether, for example, parties not participating in data spaces/iSHARE network are excluded from the market via abuse of dominance. A dominant position is not in itself anti-competitive. Only when that position is exploited to eliminate competition, it is considered an abuse. Examples of practices that can (but do not necessarily have to) lead to abuse of dominance are exclusive dealing agreements, a refusal to supply, and certain pricing practices.
The iSHARE Trust Framework is intended to be an open framework, accessible to any party – admitted to the iSHARE Trust Framework or not - seeking to use its functionalities