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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

of the price fixers. At best, the JFTC will be able to take an action against the horizontally
competing firms that have been part of the illegal price fixing.

What then with the scenarios for which Ezrachi and Stucke warn in case

an algorithm is going to act as a hub? In the first scenario, the same algorithm will be
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sold to and used by various firms that are each other’s competitors. Unlike in the scenarios
described above, the hub is not assembling information from the competing firms,

it only has a relationship to the firm it belongs to. It is possible that the use of the same
algorithm will lead to the same price setting. Unless the use of the same algorithm has

been the result of communication among the competing firms, it is hard to argue that
the unwitting use of the same algorithm could be caught by the AMA. Would it change
if the firm is aware that competitors have purchased the same algorithm? For example,

the firm could learn from the algorithm producer or vendor that the same algorithm has
been sold to competing firms. Since this kind of knowledge does not constitute
an exchange of sensitive information. Hence, also in this case the application of

the AMA would be difficult to defend.
The last algorithmic hub and spoke scenario for which Ezrachi and Stucke

caution is the scenario in which a firm develops and operates an algorithm that sets
the price for enterprises that subscribe to the use of that algorithm. The popular example
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in this context is Uber. The complexity for applying Article 3 and 2(6) of the AMA to
this scenario is to prove the presence of communication between parties that could be
considered active in the same market. If we build the scenario around Uber, we know

that Uber runs an algorithm to collect information on available drivers and customers.
Based on that information, the algorithm determines the price. The communication from

the driver is his availability at a certain spot. The rider communicates his request for
a ride to the algorithm. The algorithm communicates a price to both the rider and
the driver. There is no communication between the drivers. However, their communication

with the algorithm has an influence on the price, and so does the request of a customer.
Is the communication that one is available as a driver sensitive information? In the end,

66 For the hub-and-spoke scenarios, see Ezrachi and Stucke (2016), pp. 47-50.
67 Ezrachi and Stucke (2016), pp. 50-52.

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