1. Dealing with Hub and Spoke Arrangements in the EU Member States BIICL Conference - 19 th April 2010 Helen Bardell : Partner – Baker & McKenzie LLP, London

2. 2 Hub and spoke - vertical relationships - converted to horizontal cartels –Undertakings must determine policy independently –Concerted practice = Co-ordination between undertakings which, without having reached the stage where an agreement, properly so called, has been concluded, knowingly substitutes practical co-operation between them for the risks of competition (Dyestuffs) –An exchange can be anti-competitive by object if it is capable of removing the uncertainties concerning intended conduct (T-Mobile) –Presumption have taken into account information exchanged (Anic) –Co-ordinator, not an industry player, facilitates cartel organisation –Treuhand –objective: did X contribute - even in subsidiary, accessory or passive role? –subjective: manifestation of intention to contribute to common objectives B AC

3. 3 Hub and spoke - vertical relationships – converted to horizontal cartels Cases involved illegal RPM converted to horizontal cartel but is illegal vertical agreement a requirement?

4. 4 JJB Sports v Office of Fair Trading –Retailer A discloses to Supplier B its future pricing intentions in circumstances where A may be taken to intend that B will make use of that information to influence market conditions by passing that information to other retailers (of whom C is or may be one), –B does, in fact, pass that information to C in circumstances where C may be taken to know the circumstances in which the information was disclosed by A to B, and –C does, in fact, use the information in determining its own future pricing intentions, … then A, B and C are all to be regarded as parties to a concerted practice having as its object the restriction or distortion of competition

5. 5 Hub and spoke - vertical relationships converted to horizontal cartel Toys “R” US Inc v FTC Dealer 1 Dealer 2 Dealer 3 PepsiCo v Coca-Cola Non-price related restrictions (not necessarily illegal when bi-lateral – requiring a “rule of reason” analysis) Retailer can be the hub

6. 6 Hub and spoke – developments across Europe Recent Examples of “Hub and Spoke” Investigations –UK: Replica Kit; Toys and Games; Dairy, Tobacco (hub and spoke elements dropped) –Belgium: Home and Personal Care Products –Germany – reference to hub and spoke elements in CIBA Vision (but nor pursued as hub and spoke) chocolate, January 2010 dawn raids in the food retail, drugstore, pet supplies sector and branded consumer goods –France: “Carrefour refunds 10 times the difference” (not pursued as hub and spoke) –Switzerland: books

7. Dealing with Hub and Spoke Arrangements in the EU Member States BIICL Conference - 19 th April 2010