Author: Csongor Nagy
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  • 1 University of Szeged Private International Law Department Rákáczi tér 1 H-6722 Szeged Hungary
  • 2 Budapest University of Technology and Economics Műegyetem rkp. 3-9 H-1111 Budapest Hungary

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.

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  • In this paper, the term resale price fixing or RPF will be used to designate fixed and minimum resale prices. Resale price maintenance (RPM) has been the traditional designation of supplier practices concerning resale prices, however, in both EU and US antitrust law, maximum and recommended resale prices are subject to effects-analysis and normally lawful; hence, in the scholarship the controversy focuses on fixed and minimum resale prices. The approaches of US antitrust and EU competition law regarding maximum resale price fixing and recommended resale prices roughly coincide. The latter two kinds of arrangements are to be examined under the rule of reason in US antitrust law, while in EU competition law they are declared lawful if neither the supplier’s, nor the buyer’s market share exceeds 30% and even above this threshold they can be condemned only if they have anti-competitive effects. For US law see United State v Colgate & Co., 250 U.S. 300 (1919); Albrecht v Herald Co., 390 U.S. 145 (1968). For EU law see Article 3 of Regulation 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices. OJ [2010] L 102/1. (BER); Case 161/84 Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgallis [1986] ECR 353.

  • Leegin Creative Leather Products, Inc. v PSKS, Inc., 127 S.Ct. 2705 (2007).

  • Dr. Miles Medical Co. v John D. Park & Sons Co., 220 U.S. 373. (1911).

  • Monsanto Co. v Spray-Rite Service Corp., 465 U.S. 752, 762–763 (1984).

  • Article 3 of the BER.

  • Guidelines on vertical restraints. OJ [2010] C 130/1. (Guidelines on Vertical Restraints).

  • Article 101(1) of the Treaty on the Functioning of the European Union, hereafter Article 101(1). Before 1 December 2009, the number of this Article was Article 81(1), and before 1 May 1999 it was Article 81(1). In this paper, the new numbers introduced by the Treaty of Lisbon (applicable as from 1 December 2009) are used, including the texts of the quotations.

  • Article 101(3) of the Treaty on the Functioning of the European Union, hereafter: Article 101(3). Before 1 December 2009, the number of this Article was Article 81(3), and before 1 May 1999 it was Article 81(3). In this paper, the new numbers introduced by the Treaty of Lisbon (applicable as from 1 December 2009) are used, including the texts of the quotations.

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  • For an overview on these see Nagy, Cs. I.: A viszonteladási ár rögzítésének megítélése az amerikai, az EU és a magyar versenyjogban: kihasznált és kihagyott lehetőségek. (The view of resale price fixing in the U.S., the EU and the Hungarian competition law: utilized and missed opportunities.) In: Verseny és Szabályozás 2011 (eds: Valentiny, P.—Kiss, F. L.—Nagy, Cs. I.). Budapest, 2012. 59–69.

  • Ostlund, H. J.— Vickland, C. R.: Fair Trade and the Retail Drug Store (1940); Thomas Overstreet, Resale Price Maintenance: Economic Theories and Empirical Evidence (Bureau of Econ., Fed. Trade Comm’n 1983), 80; Ippolito, P. M.: Resale Price Maintenance: Empirical Evidence from Litigation. Journal of Law and Economics, 34 (1991), 263. See also Ornstein, S. I.: Resale Price Maintenance and Cartels. Antitrust Bulletin, 30 (1985), 401. (Concluding that hints of a cartel were present in less than a third of the RPF cases.); Kleit, A. N.: Efficiencies without Economists: the Early Years of Resale Price Maintenance. Southern Economic Journal, 59 (1993), 597. (Reaching a similar conclusion regarding RPF’s use as a cartelization tool.)

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  • The ECJ granted leave to a price recommendation system in Pronuptia holding that “although provisions which impair the franchisee’s freedom to determine his own prices are restrictive of competition, that is not the case where the franchisor simply provides franchisees with price guidelines, so long as there is no concerted practice between the franchisor and the franchisees or between the franchisees themselves for the actual application of such prices.” Case 161/84 Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgallis ECR [1986] 353, para 25. The ECJ has not ruled on maximum resale prices, yet. Likewise, the Commission also takes a more relaxed view with regard to recommended prices and maximum price fixing. See Guidelines on Vertical Restraints, paras 226-229; Case COMP/B-1/38348 Repsol CPP SA OJ [2004] C 258/03, paras 18-20.

  • Gulati, B.: Minimum Resale Price Maintenance Agreements-and the Dilemma Continues. The Competition Law Review, 8 (2012) 2, 133; Kneepkens, M.: Resale Price Maintenance: Economics Call for a More Balanced Approach. European Competition Law Review, 28 (2007) 12, 656. (Stating that in practice RPF is “subject to a per se prohibition.”)

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  • Korah, V.— O’Sullivan, D.: Distribution Agreements under the EC Competition Rules. Oxford, 2002. 105; Ritter, L.—Braun, W. D.: European Competition Law: a Practitioner’s Guide. The Hague, 2005. 269–270; Alese, F.: Unmasking the Masquerade of Vertical Price Fixing. European Competition Law Review, 28 (2007) 9, 525.

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  • As shown by several Commission decisions. See e.g.77/66/EEC GERO-fabriek OJ [1977] L 16/8, para II(3)(c); 2002/190/EC JCBOJ [2002] L 69/1, paras 168–172.

  • Case 243/83 SA Binon & Cie v SA Agence et messageries de la pressem [1985] ECR 2015.

  • Or as the authentic French version of the judgment says: “sont en elles-memes restrictives de concurrence”.

  • The ECJ held that RPF comes under Article 101(1)(a) “directly or indirectly fix purchase or selling prices or any other trading conditions”. Para 44 (“[P]rovisions which fix the prices to be observed in contracts with third parties constitute, of themselves, a restriction on competition within the meaning of Article 101(1) which refers to agreements which fix selling prices as an example of an agreement prohibited by the Treaty.”).

  • Case 27/87 SPRL Louis Erauw-Jacquery v La Hesbignonne SC [1988] ECR 1919, paras 12–15. (Condemning the fixing of the minimum ‘resale’ price in a technology transfer agreement concerning plant breeders’ rights.)

  • Case 161/84 Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgallis [1986] ECR 353.

  • Para 25.

  • 73/322/EEC Deutsche Philips GmbH OJ [1973] L 293/40, para 2(b); 77/66/EEC GEROfabriek OJ [1977] L 16/8, para II(3)(c) (Here RPF was also used as a device to partition the common market.); 80/1333/EEC Hennessy-Henkell OJ [1980] L 383/11, para 20 (Asserting that RPF “has the object of limiting (…) [the distributor’s] freedom to fix resale prices, prevents the exclusive dealer from fixing them freely on the basis of the conditions obtaining on the market.”); 97/123/EC Novalliance/Systemform OJ [1996] L 47/11, para 101; 2001/135/EC Nathan-Bricolux OJ [2001] L 54/1, para 72 (Expressly characterizing RPF as anti-competitive by object.); 2002/190/EC JCBOJ [2002] L 69/1, paras 168-172 (Here RPF was also used as a device to partition the market.); Case COMP/37.975 PO/Yamaha Commission decision of 16.07.2003 (unpublished but available at http://ec.europa.eu/competition/antitrust/cases/decisions/37975/en.pdf), paras 88, 127, 137, 144 and 155–156 (Designating RPF as restrictive by object and “obvious restriction of competition.”); 2001/711/EC Volkswagen OJ [2001] L 262/14, paras 71 and 74 (Sating the there was no need to show effects as RPF is anti-competitive by object.); 2001/135/EC Nathan-Bricolux OJ [2001] L 54/1, paras 86 and 88 (Designating RPF as restrictive by object.). This approach was taken by the Commission from the beginning of EU competition law. See Korah, V.-O’Sullivan, D.: Distribution Agreements under the EC Competition Rules. Oxford, 2002. 105-106.

  • Guidelines on the application of Article 81(3) of the Treaty. OJ [2004] C 101/97. para 23 (Guidelines on Article 101(3)); Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty establishing the European Community (de minimis). OJ [2001] C 368/13. para 11(2) (Notice on Agreements of Minor Importance).

  • Guidelines on Vertical Restraints, paras 48 and 223.

  • Case 27/87 SPRL Louis Erauw-Jacquery v La Hesbignonne SC [1988] ECR 1919, para 15 (Asserting that the parallel employment of RPF clauses in different agreements entails that “those agreements have the same effects as a price system fixed by a horizontal agreement.”).

  • Contrary to the Old Guidelines on Vertical Restraints of 2000 (Guidelines on vertical restraints. OJ [2000] C 291/1.) that failed to demonstrate with compelling arguments that RPF is ‘always or almost always’ anti-competitive and, in para 112, pointed only to two main negative effects: “(1) a reduction in intra-brand price competition, and (2) increased transparency on prices. (…) Increased transparency on price and responsibility for price changes makes horizontal collusion between manufacturers or distributors easier, at least in concentrated markets. The reduction in intrabrand competition may, as it leads to less downward pressure on the price for the particular goods, have as an indirect effect a reduction of inter-brand competition.”

  • Para 224.

  • Cf. Old Guidelines on Vertical Restraints, para 112.

  • It is essential to stress that in EU competition law RPM also covers resale price maintenance “achieved through indirect means.” Guidelines on Vertical Restrains, para 48 (“However, RPM can also be achieved through indirect means. Examples of the latter are an agreement fixing the distribution margin, fixing the maximum level of discount the distributor can grant from a prescribed price level, making the grant of rebates or reimbursement of promotional costs by the supplier subject to the observance of a given price level, linking the prescribed resale price to the resale prices of competitors, threats, intimidation, warnings, penalties, delay or suspension of deliveries or contract terminations in relation to observance of a given price level. Direct or indirect means of achieving price fixing can be made more effective when combined with measures to identify price-cutting distributors, such as the implementation of a price monitoring system, or the obligation on retailers to report other members of the distribution network that deviate from the standard price level.

  • Regulation 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices. OJ [1999] L 336/21. (Old BER).

  • Regulation 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector. OJ [2002] L 203/30 (MVBER). It is to be noted that the New MVBER (Regulation 461/2010 of 27 May 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector. OJ [2010] L 129/52). extended the scope of the BER to the motor vehicle aftermarket (purchase, sale or resale of spare parts for motor vehicles and provision of repair and maintenance services for motor vehicles), while the MVBER remains applicable to the purchase, sale and resale of new motor vehicles until 31 May 2013.

  • Regulation 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements. OJ L 123, 27.4.2004, 11-17 (TTBER).

  • Case T-17/93 Matra Hachette SA v Commission [1994] ECR II-595, para 85. See also Guidelines on Article 101(3), para 46 (“Article 101(3) does not exclude a priori certain types of agreements from its scope. As a matter of principle all restrictive agreements that fulfil the four conditions of Article 101(3) are covered by the exception rule.”). See also Case C-209/07 Competition Authority v Beef Industry Development Society Ltd and Barry Brothers (Carrigmore) Meats Ltd [2008] ECR I-8637, paras 21 and 39.

  • In Hennessy-Henkell, the Commission considered that although the exclusivity would encourage the distributor to invest thus ensuring a wider distribution of the products, it asserted that the fixing of the resale price by the German distributor deprived the exclusivity of the chance to be exempted under Article 101(3), as the fixed prices forestalled that the benefits resulting from the improvements in distribution introduced by the exclusivity would be passed on to the consumers. 80/1333/EEC Hennessy-Henkell OJ [1980] L 383/11, paras 28, 30 and 32 (“For such improvement to be effective, however, the exclusive dealer would have to be able to fix resale prices freely on the basis of the cost price of the products purchased from the manufacturer and by adapting his profit margin to the sales policy determined by him on the basis of the conditions obtaining on the market. This requirement is essential if Hennessy products are to penetrate the German market better, and to combat competition from other brands.”) (“Nor can it be concluded that a fair share of the benefits which could result from exclusive distribution is being set aside for consumers.

  • Guidelines on Article 101(3), paras 46 and 79 (“However, severe restrictions of competition are unlikely to fulfil the conditions of Article 101(3). Such restrictions are usually black-listed in block exemption regulations or identified as hardcore restrictions in Commission guidelines and notices. Agreements of this nature generally fail (at least) the two first conditions of Article 101(3). They neither create objective economic benefits nor do they benefit consumers. (…) Moreover, these types of agreements generally also fail the indispensability test under the third condition.”) (“Restrictions that are black listed in block exemption regulations or identi? ed as hardcore restrictions in Commission guidelines and notices are unlikely to be considered indispensable.”).

  • See Korah, V.-O’Sullivan, D.: Distribution Agreements under the EC Competition Rules. Oxford, 2002. 233. (Noting that “[i]n brief, although Matra Hachette suggests that no restriction of competition is beyond exemption, there appears to be no real possibility of redeeming the so-called ‘hardcore’ restraints, and their inclusion in any distribution arrangement—even one which would otherwise satisfy the conditions for exemption under Regulation 2790/99-exposes the parties to serious risk of fines and nullity. Businesses would be well advised simply to avoid such restraints entirely.”)

  • Kneepkens, M.: Resale Price Maintenance: Economics Call for a More Balanced Approach. European Competition Law Review, 28 (2007) 12, 656. (Stating that in practice RPF is “subject to a per se prohibition.”)

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  • Jones, A.: Resale Price Maintenance: a Debate about Competition Policy in Europe. European Competition Journal, 5 (2009) 2, 501–502.

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  • Case 243/83 SA Binon & Cie v SA Agence et messageries de la pressem, [1985] ECR 2015.

  • Para 46 (“If, in so far as the distribution of newspapers and periodicals is concerned, the fixing of the retail price by publishers constitutes the sole means of supporting the financial burden resulting from the taking back of unsold copies and if the latter practice constitutes the sole method by which a wide selection of newspapers and periodicals can be made available to readers, the Commission must take account of those factors when examining an agreement for the purposes of Article 101(3).”).

  • Regulation 17, Article 9(1).

  • See Whish, R.: Competition Law. Oxford, 2009. 637; Gulati, B.: Minimum Resale Price Maintenance Agreements—and the Dilemma Continues. The Competition Law Review, 8 (2012) 2, 133. Nonetheless, the Commission in Volkswagen, while finding that the conditions of Article 101(3) were not met, refrained from condemning RPF in general (stressing that the requirements of an individual exemption were not met in this case) and seriously examined the justifications proffered by Volkswagen. 2001/711/EC Volkswagen OJ [2001] L 262/14, para 95 (“Resale price maintenance does not contribute to improving the production or (in this case) the distribution of goods. Although, according to Volkswagen AG, it is intended to improve the profitability of German Volkswagen dealers and help them attain or maintain the standards of service prescribed by Volkswagen AG, and hence could, according to this argument, contribute to safeguarding as many dealerships as possible, there is no evidence to suggest that safeguarding individual dealerships which under normal competitive conditions would not be viable would appreciably improve the distribution of goods or that this alleged improvement might offset the disadvantages of the restriction of competition. Furthermore, there is not the slightest guarantee that the larger profits earned by Volkswagen dealers as a result of their refusing to grant discounts on the purchase of new VW Passat cars will be used to safeguard dealerships.”)

  • Cases IV/C-2/31.609 and 37.306, XXIXth Report on Competition Policy 161 (1999).

  • See United States v Arnold Schwinn Co., 388 U.S. 365, 380 & 3101 (1967).

  • Guidelines on Vertical Restraints, para 13.

  • Guidelines on Vertical Restraints, para 47 (“The Block Exemption Regulation contains in Article 4 a list of hardcore restrictions which lead to the exclusion of the whole vertical agreement from the scope of application of the Block Exemption Regulation. Including such a hardcore restriction in an agreement gives rise to the presumption that the agreement falls within Article 101(1). It also gives rise to the presumption that the agreement is unlikely to fulfil the conditions of Article 101(3), for which reason the block exemption does not apply. However, undertakings have the possibility to demonstrate pro-competitive effects under Article 101(3) in an individual case. In case the undertakings substantiate that likely efficiencies result from including the hardcore restriction in the agreement and that in general all the conditions of Article 101(3) are fulfilled, this will require the Commission to effectively assess the likely negative impact on competition before making the ultimate assessment of whether the conditions of Article 101(3) are fulfilled.”).

  • Para 223.

  • Para 225.

  • Para 225.

  • Para 225.

  • United State v Colgate & Co., 250 U.S. 300 (1919).

  • Nagy, Cs. I.: A vertikális megállapodás mint a kartelltilalom küszöbfogalma: összehasonlító jogi elemzés és értékelés (The vertical agreements as the antitrust threshold concept: Comparative legal analysis and evaluation). Versenytükör, 7 (2011) 1, 20–35.

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  • See Joined Cases 100 to 103/80 SA Musique Diffusion française and others v Commission [1983] ECR 1825, paras 79–80; Joined Cases 32/78, 36/78 to 82/78 BMW Belgium SA and others v Commission [1979] ECR 2435, paras 28–30; 107/82 Allgemeine Elektrizitäts-Gesellschaft AEG-Telefunken AG v Commission [1983] ECR 3151. paras 38–39 and 46; Joined Cases 25/84 and 26/84 Ford-Werke AG and Ford of Europe Inc. v Commission, [1985] ECR 2725. paras 6 and 20–25; Case C-277/87 Sandoz prodotti farmaceutici SpA v Commission [1990] ECR I-45; Joined Cases C-2/01 and C-3/01 Bundesverband der Arzneimittel-Importeure eV and Commission v Bayer AG [2004] ECR I-23, paras 140 and 142. On the EU judicial practice see also Broberg, M.-Jakobsen, P. S.: The Concept of Agreement in Article 81 E.C.: on the Manufacturers’ Right to Prevent Parallel Trade within the European Community. European Competition Law Review, 23 (2002) 3, 128; Lianos, I.: Collusion in Vertical Relations under Article 81 EC. Common Market Law Review, 45 (2008), 1037.

  • Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, on appeal Case C-338/00 Volkswagen AG v Commission [2003] ECR I-9189.

  • Frey & Son v Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451 (1921); Russell Stover Candies, Inc. v FTC, 718 F.2d 256, 257 (1983); Monsanto Co. v Spray-Rite Service Corp., 465 U.S. 752 (1984); World of Sleep, Inc. v La-Z-Boy Chair Co., 756 F. 2d 1467, 1475-1476 (1985).

  • See National Collegiate Athletic Ass’n v Board of Regents of the University of Oklahoma, 468 U.S. 85, 109 (1984); FTC v Indiana Federation of Dentists, 476 U.S. 447 (1986).

  • Areeda, Ph.: The Rule of Reason—A Catechism on Competition. Antitrust Law Journal, 55 (1986), 582.

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  • Peeperkorn, L.: Resale Price Maintenance and its Alleged Efficiencies. European Competition Journal, 4 (2008) 1, 204, 212. (Asserting that it can be argued that the hardcore approach of EU competition law is “in a way an application of what is described (…) [in Leegin] by the Supreme Court.”) (“One could conclude that the Leegin judgment provides the US authorities and courts with the possibility of applying the same policy towards RPM as is currently applied in the EU, though it remains to be seen how US policy will develop.”); Jones, A.: Resale Price Maintenance: a Debate about Competition Policy in Europe. European Competition Journal, 5 (2009) 2, 513. (Arguing that the Commission could be encouraged to consider the pro-competitive merits of RPM under Article 101(3).); Van Doorn, F.: Resale Price Maintenance in EC Competition Law: The Need for a Standardised Approach. (November 6, 2009) (available at SSRN: http://ssrn.com/abstract=1501070), 1, 23–24.

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  • Para 47 of the Commission’s Guidelines on Vertical Restraints encourages hardcore restrictions to try to meet the conditions of Article 101(3). This siren song is repeated specifically regarding RPF in para 223 of the Guidelines on Vertical Restraints.

  • The approach that RPFs of minor importance cannot raise competition concerns and are, hence, in accord with competition law appears, for instance, in Section 13 of the Hungarian Competition Act (Law No LVII of 1996), which regards RPF below 10% market share as de minimis and, thus, lawful.

  • Whish, R.: Competition Law. Oxford, 2009. 114.

    Whish R. , '', in Competition Law , (2009 ) -.

  • In order to distinguish absolute territorial protection (exclusivity) from relative territorial protection, the concept of active/passive sales was developed in EU competition law. A passive transaction is a sale for which the dealer made no efforts: these are the unsolicited orders addressed to it; on the other hand, active transactions are sales that are entailed by the distributor’s endeavours. Location clauses, areas of primary responsibility and restrictions on advertisements are considered as restraints on active sales. An outright prohibition on export, i.e. forbidding both active and passive sales, amounts to an absolute territorial protection, while the mere exclusion of active sales qualifis as relative territorial protection. See Regulation 1983/83 OJ [1983] L 173/1, Article 2(2)(c) (Theregulation defined active sales as follows: “the obligation to refrain, outside the contract territory and in relation to the contract goods, from seeking customers, from establishing any branch, and from maintaining any distribution depot.”).

  • Para 61. A similar provision was included also in the Old Guidelines on Vertical Restraints, para 119(10).