Trading Negotiations between Retailers and Suppliers: A Fertile Ground for Anti-Competitive Horizontal Information Exchange?
(2009) 5(3) European Competition Journal 823
23 Pages Posted: 13 Dec 2017
Date Written: 2009
Despite outward appearances, the flow of information between retailer and supplier in a “hub and spoke” arrangement can in certain circumstances be deemed to be horizontal in nature (i.e. equivalent in substance as a direct exchange from the retailer to her competitor). This article recognises this fact in order to identify what information should not be passed on to suppliers by retailers and in what circumstances. In pursuing this aim, this article assumes that the law on direct competitor-to-competitor information exchange is instructive: by identifying the underlying concern with direct competitor-to-competitor exchanges one can construct a legally-consistent approach to retailer-supplier-competing retailer exchanges. A two-step approach is therefore taken. First, the article considers the current legal treatment of direct competitor-to-competitor information exchanges, and thereby identifies the types of information that are suspect. Second, the article then examines how the addition of the vertical element affects the legal assessment; in doing so, it examines the circumstances in which an exchange of information through a “hub and spoke” arrangement can be deemed to be a de facto horizontal exchange. Taken together, then, both of these steps identify what information should not be passed on to suppliers by retailers and in what circumstances.
Keywords: Anti-competitive agreements; concerted practices; 'hub and spoke' arrangements; information exchange; vertical collusion
Suggested Citation: Suggested Citation