This essay examines how European competition law can move toward an improved analytical framework for resale price maintenance ("RPM") cases consistent with the view of European competition law as a consumer welfare prescription. Before addressing RPM issues directly, Part I summarizes a few ground rules on the analytical framework in article 101 TFEU ("Treaty on the Functioning of the European Union") cases in an economics-based competition regime. This Part should help avoid the circularity of the argument that a restraint such as RPM should be considered a “restriction by object” under article 101(1) TFEU because it is characterized as a “hardcore” violation in a Commission block exemption regulation, and conversely, it is classified as a “hardcore” violation because it is a “restriction by object.” This part should also help allay concerns that moving RPM out of the “hardcore” comfort zone would automatically convert RPM analysis into a morass of endless inquiries and steep evidentiary requirements where, in the end, a plaintiff or competition authority would almost invariably lose, even in cases where RPM is harmful.
Andreas P. Reindl,
Resale Price Maintenance and Article 101: Developing a More Sensible Analytical Approach,
33 Fordham Int'l L.J. 1300
Available at: http://ir.lawnet.fordham.edu/ilj/vol33/iss4/5