Hub-and-Spoke Conspiracies: the Vertical Expression of a Horizontal Desire?

Abstract

An increasing number of horizontal agreements involve both competitors and their common suppliers (or retailers). As vertical agreements, indirect horizontal agreements can help reduce coordination failures, but they also have the capacity to dampen competition. The negative welfare effect of these agreements generally dominates when undertakings try and raise prices.Competition authorities generally distinguish alleged infringements between competitors active on the same relevant market (horizontal information exchanges or agreements) and those between undertakings and their suppliers or their customers (vertical agreements). A rising number of infringements mix elements of vertical and horizontal concerted practices, because they are horizontal in nature, but involve competitors and their suppliers (or retailers). They are referred to as hub-and-spoke exchanges (or A-B-C exchanges), where the spokes are active on the same product market and interact indirectly through the hub.From an economics perspective, there is not always an indisputable motive to classify hub-and-spoke agreements as mainly vertical with an horizontal effect, or mainly horizontal with the involvement of a supplier. In the European Union, the legal standards for horizontal and vertical infringements differ significantly. While the Commission’s Guidelines on Vertical Restraints characterize vertical minimum resale price maintenance agreements as hardcore restrictions, relying on the presumption that such agreements have an anticompetitive effect, the legal test for indirect horizontal concerted practices developed by the UK Courts is more demanding. It requires that competition authorities prove that the spokes and the hub transmit the information with an anticompetitive intent.