Resale price maintenance: by object infringements and per se infringements – mind the gap!

Abstract

On 29 June 2023, the Court of Justice of the European Union issued a preliminary judgment with respect to the status of resale price maintenance under EU competition law (Case C-211/22 Super Bock EU:C:2023:529). It clarified the notion of resale price maintenance and provided guidance as to the treatment of such conduct as a hardcore restriction and a potential by object restriction of competition under Article 101 TFEU. The purpose of this article is to assess how competition authorities and companies may use such recent case law to better understand resale price maintenance. We argue that, far from a per se infringement, the characterization of vertical price fixing as a restriction of competition ‘by object’ requires a detailed assessment of the context. In some cases (such as a risk of free riding, or protection of brand image), context may indeed cast doubt as to the alleged anticompetitive nature of such conduct.