Lingering Uncertainty over the Antitrust Approach to Resale Price Maintenance

Abstract

This article considers the latest developments in the American and EU antitrust approach to fixed and minimum resale price maintenance and shows that although in both jurisdictions the courts and public enforcers have moved away from their hitherto rigid stance, the contrasting views at both federal and state level in the United States and between the European Commission and the German Cartel Office are creating uncertainty on the potential justifiability or otherwise of such agreements to the detriment of the business community. It concludes that in view of the lack of consensus on the degree of pro-competitive benefits of agreements fixing minimum RPM and the absence of empirical evidence of their pro-competitiveness, the best approach is the one announced by the Commission in the recently revised vertical restraints guidelines of maintaining a presumption of illegality but with a greater willingness to test this presumption against claimed efficiencies.