Signalling 2.0 – public communication as an antitrust risk

1. AI-supported analysis triggers antitrust investigations by the European Commission

In early 2024, the European Commission conducted unannounced searches of several tyre manufacturers on suspicion of cartel agreements, basing its initial suspicion largely on publicly available information – in particular transcripts of analyst calls, press releases and presentations. The European Commission systematically evaluated this information, in part with the aid of AI, in order to identify indications of anti-competitive coordination.

The General Court of the European Union considered this method of investigation to be a sufficient basis for a search and emphasised that legal publication and transparency obligations do not constitute justification for a violation of antitrust law (T-188/24 – Michelin). Companies are urged to carefully review the content of their public communications for information relevant to competition.

2. Background

In the present judgement, the General Court of the European Union dealt with an action brought by the tyre manufacturer Michelin against the Commission's review decision. The background to this was a search conducted by the Commission on suspicion of anti-competitive practices in the tyre industry.

The Commission suspected that several market participants, including Michelin, may have used public analyst calls and communications strategically to announce future sales prices and thus bring about coordinated pricing without there being any explicit agreement.

The suspicions were based on an artificial intelligence-supported analysis of several hundred thousand publicly available statements and conference calls on the financial results and forecasts of the companies concerned, in particular on expected wholesale prices. The Commission supplemented this automated evaluation with manual checks. In the Commission's view, this provided sufficient indications of possible violations of antitrust law to justify the investigations. The General Court of the European Union has largely confirmed this view.

3. How does this affect companies?

3.1 Every public statement counts

Whether it's an analyst call, press release or presentation: any public statement containing strategic information on prices, market or other competitive behaviour could be interpreted by antitrust authorities in future as an indication of unlawful coordination. Statements that could be understood as a ‘signal’ to competitors – such as announcements of pricing strategies or references to industry-wide ‘competitive discipline’ – are particularly critical.

Companies must therefore adapt their communication and compliance strategies accordingly if they are to minimise the risk of antitrust investigations.

3.2 Transparency obligations do not protect against antitrust violations

Statutory disclosure requirements do not exempt companies from complying with antitrust law. Compliance with transparency requirements must not lead to the publication of competitively sensitive information.

3.3 Synchronised communication increases the risk

Public statements by several market participants that are coordinated in terms of timing or content can give rise to suspicion of prohibited coordination. Companies should therefore be particularly cautious when publishing similar announcements at similar times to their competitors.

4. Guard rails for companies

Care and restraint in public communications:

Companies should not communicate specific or detailed information about future prices, pricing strategies or planned price increases in public communications (e.g. press releases, analyst calls, investor presentations). Such statements can be interpreted as a ‘signal’ to competitors and may give rise to the risk of investigation by the antitrust authorities.

Public statements on capacity adjustments or other planned strategic measures should also be reviewed for their relevance to competition, especially if they allow conclusions to be drawn about future market behaviour.

Clear internal communication guidelines and approval processes:

Companies should issue clear internal guidelines governing what information is permissible in public communications and what is not. In particular, statements on prices, capacities, market shares or strategic intentions should be subject to special scrutiny.

All public communications relating to the market should be reviewed for antitrust risks prior to publication. The approval and review process should be documented in order to demonstrate observance of the compliance processes in the event of an investigation.

Monitoring and analysis of communications:

Companies should establish a system for monitoring and analysing their own public communications in order to identify risks at an early stage and take countermeasures.

Training and awareness-raising:

Managers and all employees involved in public communication formats should receive regular training on antitrust risks.

When in doubt:

less is more – companies should refrain from making statements that could be interpreted as a ‘signal’ to competitors and seek legal advice before publishing strategically relevant information.

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