Resale Price Maintenance and the Law

Name: Resale Price Maintenance and the Law | The Future of Vertical Restraints
Brand: Routledge
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The Future of Vertical Restraints

Christy Kollmar(Autor*in)

Routledge (Verlag)

1. Auflage

Erschienen am 31. März 2023

440 Seiten

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Beschreibung

The question of how to properly enforce against RPM has been a contentious debate for decades on both sides of the Atlantic. The catalyst is the acceptance that RPM can generate both anti-competitive effects and pro-competitive efficiencies that need to be properly balanced to ensure against Type I/Type II errors and to create viable legislation. Part I focuses on 100 years of US origins and the current legal approach to VR enforcement, which reveals the precedent responsible for the transition between per se illegality and the rule of reason thresholds at the federal level. Nine anti-competitive and 19 pro-competitive theoretical models are also introduced to clearly demonstrate the true nonconsensus existent between economists as to whether RPM is deleterious enough to justify a stringent approach to RPM regulation. Part II closely examines the EU origins and current legal structure, where RPM has maintained its hardcore by-object designation pursuant to Art. 101(1) TFEU with the consequence of having no safe harbours, no applicability of the De Minimus Doctrine, an onerous negative rebuttable presumption, non-severability of the agreement and almost no chance of obtaining an exemption under Art. 101(3). This is exacerbated by the EC's lack of guidance on how to prove all conditions necessary for an Art. 101(3) exemption and when a vertical arrangement actually escapes Art. 101(1) applicability. The aim of this book is to examine the economic models, historical origins and legal structures of the US/EU regimes to develop proposals on how to modify the EU's current legal structure to ensure proper enforcement of RPM behaviour that actually enhances legal certainty through a more aligned approach at the national level. Part III proposes five solutions which scrutinise the concepts of appreciability, hardcore and by-object restraints, to implement modifications to EU's current legal framework to ensure RPM receives reasonable and equitable treatment in line with economic theory.

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Inhalt

Contents

Preface

List of Abbreviations

List of Annexes and Tables

Chapter 1 Introduction

Abstract

Topic Introduction

Background on Assessment and Application: Legal Issues and Development

Background on Enforcement Best Practices: Investigative Techniques and Enforcement Protocol

Research Objectives and Main Research Questions

Structure and Scope of Book

Conclusory Remarks

PART I - US HISTORICAL ORIGINS AND ECONOMIC FOUNDATIONS

Chapter 2 The Legal and Political Origins of RPM - United States

Abstract

United States: Historical Origins & Legal Structure of RPM

The Introduction of the Sherman Act and its Common Law Roots: 1889-1910

Dr. Miles Era- the Right of Alienation and its Per Se Impact: 1911-1930

Fair Trade Era- Carving out Exceptions to the Sherman Act: 1930-1975

Post Fair Trade Era- Non-Price vs. Price Transition Towards Rule of Reason: 1975 - 2007

Leegin Era- Maximum vs. Minimum RPM Transition Towards Rule of Reason: 2007 - Present

Chapter Conclusion: US Historical Origins and Legal Structure

Chapter 3 The Economics of Vertical Agreements - Background

Abstract

Chapter Introduction

General Economic Background of Vertical Restraints

General Economic Background of RPM

Background on Economic Theories of RPM

Link Between Schools of Thought and Economic Models

General Structure of Models: Vertical and Horizontal Elements of RPM

Digital Single Market, the E-Commerce Sector Inquiry and the Internet

Goals of the EC: Digital Single Market and E-Commerce Sector Inquiry

Models of Change: How the Internet Changed Market Dynamics

Conclusion: RPM Economic Background and E- Commerce

Chapter 4 The Economics of Vertical Agreements - Models

Abstract

Anti-Competitive vs. Pro-competitive Economic Models of RPM

Anti-Competitive RPM Theories

Facilitating Collusion Upstream or Downstream

Increase in Prices, Lifecycles and Product Favouritism

Foreclosure and Restriction of Entry Both Upstream and Downstream

Foreclosure as a Commitment Device in Protection of Monopoly Rents

Dampen or Soften Competition Both Upstream and Downstream

Pro-Competitive RPM Theories

Special Services and Free-riding

Quality Certification and Signalling

Image Theory: The Allure of Paying More

Demand Uncertainty and Inventories

Outlets and Distribution Density

Moral Hazard and Double Moral Hazard

Production of a Good when Manufacturers' Risks are Low

Contract Enforcement Mechanism and Quality Control

Loss Leader Selling

Less Efficient Dealer and/or Distributional Efficiency

Price Discrimination

Spatial Price Discrimination

Where imposing an RPM floor leads to a decrease in collusive behaviour

RPM with Optimal Delegation

New Market Entry or Product Launch

Pro-competitive models which rely on the purely vertical aspect of RPM

Conclusion: No Consensus among Economists on Impact of RPM

PART II - EU HISTORICAL ORIGINS AND LEGAL STRUCTURE

Chapter 5 The Legal and Political Origins of RPM - European Union

Abstract

European Union: Historical Origins & Legal Structure of RPM

Historical Background of EU Vertical Enforcement

Current Legal Structure of EU Vertical Enforcement

Block Exemptions and their role in vertical restraint enforcement

Article 101(3): a closer examination of the individual assessment and its role in vertical restraint enforcement

Chapter Conclusion: EU Historical Origins and Legal Structure

Chapter 6 The Legal Concepts of By-Object, By-Effect and Appreciability

Abstract

Introduction to the Distinction between By-Object and By-Effect

A Background on By-Object Restrictions: The Finer Details

Categorisation and Analysis of By-Object Restrictions: A Deeper Dive

By-Object Categorisation: Overview of Differences between the EC and Case Law Approaches

By-Object Categorisation: Approaches to Appreciability

By-Effect Comparison: A Concise Overview of the Main Differences

Return to the RPM Legal Structure in light of the By-Object/By-Effect Dichotomy: Overview of the Current Approach to RPM Enforcement

Article 101(3): a closer examination of the individual assessment and its role in RPM enforcement

Chapter Conclusion

PART III - PROPOSALS, IMPLICATIONS AND SOLUTIONS

Chapter 7 Proposals and Solutions

Abstract

Chapter Introduction

Time for a Change? Transatlantic Synchrony towards Revealing a Malfunctioning Regime

RPM Legal Regime: Current Challenges undermining its Efficacy

Horizontal Non-consensus: Should NCAs have their own agenda?

A New Way Forward: Developing a More Viable Approach to RPM Enforcement

Proposed RPM Solutions

Solution 1: Escaping automatic Article 101(3) TFEU applicability: developing a mechanism where RPM can be found inappreciable, and therefore, not in violation of Article 101(1) TFEU

Solution 2: Eliminate RPM's hardcore designation by shifting its inclusion in the VBER from Article 4 to Article 5

Solution 3: Elimination of RPM's hardcore designation through its application to Article 2 of the VBER (original and modified case scenarios)

Solution 4: Application of the De Minimus Doctrine to RPM

Solution 5: Recommendations for Improvement of Status Quo

Chapter Conclusion

Chapter 8 Conclusion

Abstract

Conclusion: Most Serious Considerations to Enhance the Efficacy of the Current RPM Regime

Overview of Solutions: The Best Way Forward

Final Remarks

Annex 1 RPM US Origins

Annex 2. RPM Economic Models

Annex 3. RPM Model Timeline

Index

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