Competition law guidance for the education sector on information exchange between competitors

How an exchange of information may infringe competition law
Competition law applies to undertakings, i.e. any body engaged in an economic activity such as the provision of courses for remuneration, irrespective of the body’s legal status or the way it is funded. Competition law prohibits undertakings from entering into agreements or concerted practices, and prohibits decisions by associations that have as their object, or that are likely to have the effect of, restricting, distorting or limiting competition to an appreciable extent.

To be caught by competition law, agreements do not have to be in writing — they could be oral, inferred from conduct or be informal ‘gentleman’s agreements’. It applies to ‘tacit collusion’ between undertakings to jointly pursue an anti-competitive goal.

The concept of agreement/concerted practice has therefore been cast very broad and is wide enough to capture the sharing of information. When a company or institution divulges commercially sensitive or confidential information, there is a risk that the information sharing: mutes competition between them (such as by reducing the uncertainty as to how one or other competitor will behave); or leads to a collusive outcome (whereby the companies agree on a course of action)…

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