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information directly with each other. All information exchange could run through
the supplier and subsequently the algorithm. Direct communication between the horizontal

parties to the price fixing scheme is not required. An argument could be made that,
as long as the horizontal partners reacted towards the information received through

the hub with the implementation of the same or similar conduct, Article 3 and 2(6)
of the AMA could apply. In the end, there was an exchange of sensitive information
followed by an implementation in the price setting. Of course, the implementation

reveals that there is an underlying understanding among the retailers what the purpose
is of the information exchange. The question is whether the hub could be held liable.

The hub, as a supplier, is not a direct competitor of the retailers. He is, however, active
in the same product market. Is this enough to argue that the hub is ‘in essence’ a competitor
of the retailers? Without a clear statement of the JFTC a definite answer cannot be given.

The situation would be different if the supplier is substituted by a price leader.
In the OECD conceptualized scenario, a cartel only exists among horizontally competing

firms. Among these firms, one firm will act as a price leader and carry the burden of
“programming the dynamic pricing algorithm that fixes the price above the competitive
level.” Once the price has been set, the price will be collected by the algorithm that
65
is running across the competitors. The collected price will then be the basis for setting
the price at the respective competitor. All elements to constitute an unreasonable restraint

of trade are present. Sensitive information is being exchanged and a same or similar
action is implemented. Moreover, the hub of the conspiracy is active in the same product
market, due to which both the hub and the spokes could be held liable.

Another variant of the previous scenarios is that the role of the hub will be

fulfilled by an accountancy firm. If information is exchanged in order to run an algorithm
at the accountancy firm in order to decide the price of the respective competitors and
this exchange is being followed by an implementation of the same or similar conduct,

the problem will be to hold the accountancy firm liable for running the algorithm that
controls the price fixing. In the end, the accountancy firm is by far in essence a competitor

65 OECD (2017), p. 27; see also Capobianco and Gonzaga (2017), p. 4.

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