Volume 38 (2015) / Issue 2
Ioannis Apostolakis, 'Resale Price Maintenance and Absolute Territorial Protection: Single Market Integration, the Ancillary Restraints Doctrine and the Application of Article 101 TFEU to Vertical Agreements' (2015) 38 World Competition, Issue 2, pp. 215–234
The treatment of vertical restraints by the European Commission and Courts is one of the most contentious aspects of EU competition law, and has been the subject of considerable criticism. In an attempt to prioritize economic efficiency over legal formalism, the European Commission endorses in its recent Vertical Guidelines the potential ancillary nature of export bans, but at the same time implicitly acknowledges that resale price maintenance (RPM) is always caught by Article 101(1) and may be exempted on an individual basis only if found to promote productive efficiency following a substantive assessment under Article 101(3). However, whether examined from a welfare perspective or through the lens of the single market imperative, RPM and absolute territorial protection merely constitute two alternative manifestations of the same economic phenomenon. The present article will demonstrate that any attempt to distinguish between these two types of vertical restraints for normative purposes is unwarranted.
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