Legal uncertainty in the scrutiny of hub-and-spoke arrangements under Article 101(1) TFEU: A proposal to reinforce Commission’s guidance for Horizontal Cooperation Agreements

Sammanfattning: Direct or indirect exchange of commercially sensitive information between competitors is prohibited by Article 101(1) TFEU. Such disclosures enable undertakings to collude, that is, to trade practical cooperation for the risks of competition. Collusion is detrimental for consumer welfare as it allows the colluding parties to raise prices, reduce output and to share markets and customers. Due to these anti-competitive effects, all types of collusion must be prohibited by law, which is why the EU legislator intended to retain a broad scope for Article 101(1). Hub-and-spoke arrangements can be classified as indirect information exchanges. These arrangements occur where two or more competitors (spokes) share commercially sensitive information between each other via a third-party intermediary (hub) who operates at a different level of the supply chain or at a different market altogether. Hub-and-spoke information exchange can seem prima facie legitimate as vertical disclosures of strategic information are legitimate and often necessary in functioning business relations. Thus, the hub can act as a smokescreen hiding the anti- competitive conduct of the spokes. This makes it challenging to distinguish illegitimate conduct from legitimate conduct. The legal test, for hub-and-spoke arrangements at the EU level, was established in VM Remonts. This thesis argues that there is substantial legal uncertainty relating to hub-and-spoke analysis due to a broad legal test which is accompanied by insufficient guidance from the Commission and the EU courts. The pertaining legal uncertainty can lead to increasingly risk- aversive behaviour of undertakings which, in turn, leads to the loss of consumer welfare through the elimination of competitive bargaining.