The requirement of meeting of minds: horizontal and vertical agreements in EU competition law

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ABSTRACT The CJEU has developed diverging legal tests for establishing the meeting of minds in a horizontal and a vertical context. This paper questions the rationality of this approach. The paper's argument is presented as follows. Section 2 presents the trajectory of the EU case law on vertical agreements. Section 3 provides an overview of US antitrust law's highly lenient approach to the meeting of minds in vertical agreements. Section 4 presents the EU competition law's principles governing horizontal agreements. Section 5 demonstrates that horizontal and vertical hardcore restraints are not relevantly different and, hence, the bifurcated conception is inconsistent, and it would be justified to extend the principles governing horizontal agreements to vertical hardcore restraints. Section 6 presents the paper's conclusions.