121 COMPETITION LAW by other competition authorities as well. These criteria, which include a combination of objective and subjective elements, are as follows:8 Under the scenario that undertaking A and undertaking C are retailers (the spokes) and undertaking B is a supplier (the hub): A passes strategic information to B The first objective criterion is met in case A passes its competitively sensitive information to B. The term “competitively sensitive information” in this context refers to the situation where the uncertainty in the market decreases in case A’s competitors become aware of the information provided by A. For instance, information related to the future price policy of the undertakings may be considered as competitively sensitive information.9 B passes A’s competitively sensitive information to competitor C The second objective criterion is fulfilled when A discloses competitively sensitive information to the hub B and in return, B passes this information on to C. Subsequently, C uses this information to determine its own future pricing strategy on the market. A knows that the information transmitted to B will be shared with its competitors Amust communicate its competitively sensitive information to B, specifically with the intention or foresight that it will be passed on to C, which is a horizontal competitor to A. It should be noted that there is no common view in the case law as to whether A’s foresight that the information can be passed on to C by B is sufficient or whether A’s 8 OECD: Roundtable on Hub and Spoke Arrangements, Background Note (2019), p. 22, 23, https://one.oecd.org/document/DAF/COMP(2019)14/en/pdf (Access Date: 18.11.2021). 9 Court of Appeal’s Argos Limited and Littlewoods Limited v. Office of Fair Trading and JJB Sports Plc v. Office of Fair Trading decision numbered 2005/1071, 1074 and 1623, 2006 EWCA Civ 1318, para. 126, https://www.catribunal.org. uk/sites/default/files/Jdg_CoA_1014Argos_Little_JJB191006.pdf (Access Date: 17.11.2021).
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