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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

partners … and situations in which competing undertakings use a common trading
partner to facilitate anti-competitive conduct.” It is necessary to establish the “the rim
13
around the spokes,” which is the story turning seemingly individual parallel vertical
14
agreements into forbidden horizontal agreement.

Essential to an algorithm-driven hub-and-spoke scenario is that the competitors
will use “the same pricing algorithm that stabilizes prices and dampens competition.”
15
The use of the same pricing algorithm may be the result of an “intentional attempt to
dampen competition,” i.e. the “immediate aim is horizontal collusion, and each vertical

link is in furtherance of that aim.” However, an algorithm-driven hub-and-spoke can
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also follow from the “unintentional alignment and use of similar algorithms to monitor
prices.” In both cases, “a single algorithm as a hub would lead to a de facto alignment
17
among rivals that dampens competition.” 18
Based upon the conception that competition can be affected both intentionally

and unintentionally, different versions of the algorithm-driven hub-and-spoke scenario
can be conceptualized. First, the algorithm is put in place by a classical hub, meaning
a firm in a direct vertical relation to the spokes. Setting up an algorithm to control

the price could be formulated by the retailers or could be imposed by the supplier. Second,
the algorithm could be employed by a third party with the intention to facilitate collusion

between firms on the same level of the market. Most likely, these firms will demand
the third party to employ the algorithm. The third party could be of any kind, ranging
from a trade association, an accountancy firm, to a price algorithm developer/vendor.

Third, a variation of the previous version is presented by the OECD when it stated that
the use of a pricing algorithm can be inspired to follow a market leader, “who in turn

would be responsible for programming the dynamic pricing algorithm that fixes prices

13 Tuytschaever (2015), p. 24.
14 OECD (2019), p. 18.
15 Ezrachi and Stucke (2016), p. 49
16 Ezrachi and Stucke (2016), p. 49
17 Ezrachi and Stucke (2016), p. 51.
18 Ezrachi and Stucke (2016), p. 51.

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