The commission's new cartel-enforcement powers were revealed earlier this year in its draft Horizontal Guidelines, which are due to enter into force next January. These changes would criminalize a wide range of currently legal, and in some cases innocuous, conduct.

The commission has already been turning the screw on companies that transmit sensitive business information to their competitors, such as intended future prices or output. In June, the commission handed down a cartel decision involving producers of bathroom fittings and fixtures. This case relied heavily on their exchange of intended future prices. One of the producers, Ideal Standard, was fined €326 million. Similarly, in the commission's pending investigation of airfreight carriers, the commission's case depends largely upon the alleged exchange of carriers' rates and surcharges.

The commission argues that by engaging in such exchanges, competitors create "artificial market transparency." It is seen as anticompetitive for competitors to "announce" to each other their future prices, for example, because doing is seen as an invitation to collude on prices. Even the communication of one's recent prices is viewed as inviting future collusion.

The draft guidelines will raise the stakes in several ways:

First, the commission will seek to determine whether the information exchanged is equally accessible to everyone, including customers. If not, then the commission may consider the exchange to be illegal. For example, let's say that independent service station owners in greater Frankfurt regularly let each other know of their intended price increases. The commission would claim that since customers need to visit each and every service station in order to apprise themselves of the price increases, they have less access than the station owners to the price announcements.

The draft guidelines' test of "equal access" is plainly more aggressive than the current threshold of whether the information concerned is in the public domain—that is, publicly available. Under the present test, if a copper producer posts its future prices on its own website or on CNBC before communicating them to a competitor, or furnishes the information to a regulator, the company has a valid defense: the information was previously in the public domain. Under the new test, this defense would disappear. The commission would argue that consumers do not have equal access to the information—consumers' access would depend upon their prescience (or plain luck) in clicking onto the company website after the price announcement is posted, watching CNBC when the announcement is made there, or finding the information as filed with the regulator.

Nor will there be a safety net for competitors in exchanging purely historical information with each other. The draft guidelines will expect producers to determine whether the information is at least several times older than the "average length of contracts in the industry." But what types of contracts? And in what industry segments? The draft guidelines provide no answers to these questions. And how would the company determine the average length of such contracts without consulting with its competitors, which the commission is plainly discouraging?

Similarly, under the draft guidelines, the collection and publication of aggregated company data would not necessarily sanitize it. If the industry is concentrated, say limited to 5-10 producers, the commission might argue that the publication of aggregate sales in certain territories would enable producers to discern their competitors' sales.

More disturbingly, independent market-research companies, industry analysts and consultants, and even journalists, are also targeted by the draft guidelines. This is because the guidelines prohibit "indirect" information exchanges resulting from third-party dissemination of sensitive information—that is, even without the direct communication of sensitive information between competitors. If an industry consultant published up-to-date information, for example, on LCD producers' sales and customers, the commission could find that the consultant facilitated an illegal information exchange. The "cartel" would potentially include the consultant, the LCD manufacturers whose information was reported, and those producers who refused to provide their own data, but had access to the information of those reporting it.

The commission is sending a clear message: It doesn't want competitors talking to each other about much more than their golf handicaps.

However, the commission's draft guidelines are unnecessarily vague and are not narrowly tailored to meet their intended objective. It will be difficult for manufacturers to determine, without the assistance of antitrust counsel and economists, what information they can legitimately share with each other, and similarly, for consultants and other third parties to determine what company or industry data they can legally publish or broadcast. The commission should have specified precise circumstances in which "indirect" information exchanges would be deemed illegal, at least requiring strong evidence that the "third party" had been exploited by a manufacturers' cabal.

The commission's new rules will put a chilling effect on the exchange or publication of information that is positive for the economy, and which present no antitrust risk whatsoever. There is still time for the commission to consider the adoption of rules that are fair, transparent and user-friendly.