Vertical Antitrust Enforcement: Transatlantic Perspectives on Restrictions of Online Distribution Under EU and U.S. Competition Laws

Abstract

This paper looks at how EU and U.S. competition laws deal with restrictions of online sales in distribution agreements, respectively. The growing importance of online commerce highlights how vertical competition law enforcement is still an important building block of competition law policies, both in the U.S. and in Europe. Businesses who are either engaged in online activities or deal with online intermediaries in the U.S. and EU should be aware of the rules of the game, since vertical antitrust issues are generally subject to different principles on both sides of the Atlantic. The European Commission recently adopted new competition rules that specifically target restrictions of online sales in distribution agreements, acknowledging the importance of e-commerce for consumers and its instrumental role in achieving the paramount goal of a single internal market in Europe. Conversely, unlike in the EU, several factors, such as the existence of a developed online market, the absence of single market considerations, the paramount importance of freedom to contract and the role of inter-brand competition under U.S. antitrust law, arguably explain why U.S. antitrust doctrine is less concerned about the need to adopt specific rules applicable to restrictions of online sales.