| Abstract [eng] |
Problems of Proof of Competition Restricting Agreements Concluded through the Intermediary The object of this paper is to identify problems of proof of competition restricting agreements concluded through the intermediary, focusing on hub-and-spoke type agreements where the intermediary is a common business partner for competing subjects. The specifics of such agreements are highlighted and the legal test which helps detect hub-and-spoke agreements is formulated in order to reveal those problems. Agreements concluded through the intermediary have vertical elements which make such agreements look like common business practice. For this reason, the horizontal link is much harder to detect. The intermediary, even if it does not operate in the market in question, is also liable for such breach of competition law. So it is necessary to identify the intermediary and its status. Such collusions can only be reached when there is a purpose to restrict competition. The legal test, formed by United Kingdom institutions, is the most appropriate method for diagnosing agreements concluded through the intermediary. Institutions of European Union as well as institutions of other member states could use this test in their cases. The test consists of 4 necessary elements: 1) a direct exchange of commercially sensitive information between first competitor and intermediary; 2) the commercially sensitive information directly exchanged is intended to be disclosed to one or more of the other competitors; 3) intermediary discloses first competitor‘s commercially sensitive information in discussions with second competitor; 4) second competitor, confident that the information is credible, relies on the disclosed information. Proving every element of the legal test requires many different steps from the competition authority. That causes severe difficulties. It is necessary to gather much more evidence. It is particularly difficult to prove the state of mind of subjects: the intention of first competitor to disclose the information to his competitor and second competitor‘s confidence that the information is credible. It is also hard to separate common business practice from the information exchange which restricts competition. However, any facilitation of procedure of proving agreements concluded through the intermediary would be harmful. It could determine that perfectly legitimate action would be treated as a breach of competition law. |
