122 NEWSLETTER 2021 intention to pass the information to C by means of B, needs to be taken as a basis in order to prove the existence of the subjective element. Moreover, it is also noteworthy that reciprocal exchange of information is more likely to indicate the existence of a hub and spoke cartel. This situation occurs when A passes information to B while at the same time C provides information to B. In this case, it is more likely that A and C become aware of each other’s strategies. In this respect, proving the foresight or intention criterion becomes easier. In cases where the information flow is one-sided, it becomes difficult to prove that information was intentionally exchanged. Another element to be taken into consideration within the scope of this subjective element is the timing of the act and the realization of the exchange of information due to the fact that disclosing commercially sensitive information is legitimate in the context of negotiating an agreement and fixing its terms.10 In addition, while evaluating this subjective element, it is also crucial to evaluate whether there is an economic justification for exchange of information, since an economic justification may prevent the exchange of information to be considered as hub and spoke cartel. C is aware that the information is obtained from A and C uses this information in determining its own behavior on the market In addition to the aforementioned criteria, C must know why and under which circumstances11 B obtained the information from A. Otherwise, it can be argued that C did not have the purpose to impede competition. Furthermore, C must understand the reason why the information is being transferred and C must determine its own 10 Odudu, Okeoghene: Indirect Information Exchange: The Constituent Elements of Hub and Spoke Collusion, European Competition Journal, No. 7 (2) (2011), p. 234. 11 Court of Appeal’s Argos Limited and Littlewoods Limited v. Office of Fair Trading and JJB Sports Plc v. Office of Fair Trading decision No. 2005/1071, 1074 and 1623, 2006 EWCA Civ 1318, para. 141, https://www.catribunal.org. uk/sites/default/files/Jdg_CoA_1014Argos_Little_JJB191006.pdf(Access date: 17.11.2021).
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