Tesco Stores Ltd v Office of Fair Trading
[2012] CAT 31
판결 이유
To establish a hub-and-spoke infringement, the OFT must prove that the retailer foresaw, or could be taken to have foreseen, that its confidential pricing information would be passed by the supplier to a competing retailer.
사실관계
The OFT alleged that major supermarkets including Tesco had participated in concerted practices to fix the retail prices of tobacco products, with tobacco manufacturers acting as intermediaries. Tesco denied knowledge that its pricing intentions were being shared with competitors.
판결 요약
The CAT allowed Tesco's appeal in part, holding that the OFT had failed to prove to the requisite standard that Tesco had the necessary foresight that its pricing information would be transmitted to competing retailers. The Tribunal emphasised the importance of proving the mental element in hub-and-spoke cases.
주요 인용문
"The foresight requirement is not merely a theoretical element of the infringement; it is an essential safeguard that prevents legitimate vertical communications from being automatically characterised as horizontal collusion."
— The Tribunal
후속 처리
Clarified the evidential standard for hub-and-spoke infringements, requiring proof of foresight.
The CMA has subsequently been more careful to establish the mental element in indirect information exchange cases.