Resale Price Maintenance and the Law: The Future of Vertical Restraints

The enforcement of RPM has been a contentious debate for decades, with both sides of the Atlantic acknowledging its potential to generate both anti-competitive effects and pro-competitive efficiencies. This book examines the economic models, historical origins, and legal structures of the US/EU regimes to develop proposals for modifying the EU's current legal structure to ensure proper enforcement of RPM behavior that enhances legal certainty through a more aligned approach at the national level. Part III proposes five solutions that scrutinize the concepts of appreciability, hardcore and by-object restraints to implement modifications to the EU's current legal framework to ensure RPM receives reasonable and equitable treatment in line with economic theory.

Format: Hardback
Length: 426 pages
Publication date: 31 March 2023
Publisher: Taylor & Francis Ltd

The issue of how to effectively enforce against RPM has been a contentious debate for decades on both sides of the Atlantic. The catalyst for this debate is the recognition that RPM can have both anti-competitive effects and pro-competitive efficiencies that require careful balancing to ensure against Type I/Type II errors and to create viable legislation. Part I delves into the historical origins of RPM in the United States, exploring the legal approach to VR enforcement that has led to 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 introduced to illustrate the true nonconsensus among economists regarding whether RPM is deleterious enough to warrant a strict approach to RPM regulation. Part II examines the EU origins and current legal structure, where RPM has maintained its hardcore by-object designation under Art. 101(1) TFEU, resulting in the absence of safe harbours, the inapplicability of the De Minimus Doctrine, an onerous negative rebuttable presumption, non-severability of the agreement, and limited chances of obtaining an exemption under Art. 101(3). This is further 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 for modifying the EU's current legal structure to ensure proper enforcement of RPM behavior that enhances legal certainty through a more aligned approach at the national level. Part III proposes five solutions that scrutinize the economic implications of RPM, the potential benefits and drawbacks of different enforcement approaches, and the challenges and opportunities for policymakers in implementing effective RPM regulation.

Part I: US Origins and Legal Approach to VR Enforcement

In Part I, we delve into the historical roots of RPM in the United States. We explore the legal approach to VR enforcement that has shaped the regulatory landscape over the past century. We examine the precedent that led to the transition between per se illegality and the rule of reason thresholds at the federal level. This section provides valuable insights into the evolution of VR enforcement in the US and the factors that have influenced its development.

We also introduce nine anti-competitive and 19 pro-competitive theoretical models to illustrate the diverse perspectives on RPM among economists. These models help to clarify the true nonconsensus existent regarding whether RPM is deleterious enough to justify a stringent approach to RPM regulation. By presenting these theoretical models, we aim to provide a comprehensive understanding of the economic arguments surrounding RPM and to shed light on the differing viewpoints held by experts in the field.

Part II: EU Origins and Legal Structure

In Part II, we turn our attention to the EU origins and current legal structure of RPM regulation. We examine the specific provisions of Art. 101(1) TFEU that have been interpreted to maintain the hardcore by-object designation of RPM. We discuss the consequences of this designation, including the absence of safe harbours, the inapplicability of the De Minimus Doctrine, the onerous negative rebuttable presumption, non-severability of the agreement, and the limited chances of obtaining an exemption under Art. 101(3).

We also highlight 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. This lack of clarity and guidance contributes to the challenges faced by policymakers and practitioners in implementing effective RPM regulation in the EU.

To address these challenges, we propose five solutions that aim to modify the EU's current legal structure to ensure proper enforcement of RPM behavior that enhances legal certainty. These solutions consider the economic implications of RPM, the potential benefits and drawbacks of different enforcement approaches, and the challenges and opportunities for policymakers in implementing effective RPM regulation.

In conclusion, this book aims to examine the economic models, historical origins, and legal structures of the US/EU regimes to develop proposals for modifying the EU's current legal structure to ensure proper enforcement of RPM behavior that enhances legal certainty through a more aligned approach at the national level. By exploring the economic, historical, and legal dimensions of RPM regulation, we hope to contribute to the ongoing debate and provide valuable insights for policymakers and practitioners seeking to navigate the complex terrain of RPM regulation.

Weight: 970g
Dimension: 234 x 156 (mm)
ISBN-13: 9781032315485