Resale Price Fixing after the Revision of the EU Vertical Regime – A Comparative Perspective

Abstract

The paper analyses and evaluates, from a comparative perspective, the recent developments in the treatment of resale price fixing (RPF) in EU competition law. It inquires whether, as to the treatment of RPF, EU competition law is in line with US antitrust after the changes introduced by the 2010 regulatory package; and demonstrates that considerable differences exist. The paper concludes that the 2010 revision of the rules on vertical restraints somewhat refined but did not reform the law on RPF. The new rules ignore the transaction costs and realities of competition assessment and balancing. It is submitted that in EU competition law the main problem is that, conceptually, the question of RPF has been pushed in the pigeonhole of Article 101(3). The paper argues that the Notice on Agreements of Minor Importance should be amended so as to cover agreements containing RPF where market share is low.

Keywords: comparative antitrust law, intra-brand restraints, resale price fi xing, resale price maintenance (RPM), vertical restraints

JEL Classification: K21