OLES ANDRIYCHUK

NEW BOTTLES - SAME WINE? A CRITICAL ASSESSMENT OF THE REFORMED EU RULES ON VERTICAL RESTRAINTS

giuffr editore - 2011

Estratto dal volume:

CONCORRENZA E MERCATO 2011

antitrust, regulation, consumer welfare, intellectual property

NEW BOTTLES - SAME WINE? A CRITICAL ASSESSMENT OF THE REFORMED EU RULES ON VERTICAL RESTRAINTS
di OLES ANDRIYCHUK (*)

Abstract The paper gives a critical look into the selective aspects of the 2010 Commission Regulation on vertical restraints and European policy on vertical restraints in general. The central claim of this paper is that the previous as well as the new regulatory regime for vertical restraints underestimates the importance of competition, implying that its performance can be only assessed by its benecial impact on innovations and consumer welfare. On the theoretical part the paper poses one hypothesis and two arguments. The hypothesis which this paper develops is that competition represents the essence of entrepreneurial discovery and that the whole ethos of free-market economy is based upon the activities of rivals which are driven by the subjective interests of prot seeking. The normative argument states that competition should be perceived as a quintessential constitutional value of its own legal, political and economic right. The methodological argument reconciles eventual conicts between constitutionally recognised interests of competition and such economically signicant values as innovations, industrial prosperity, economic growth and the welfare of consumers. The hypothesis is substantiated by the analysis of ve selective aspects of the reformed EU rules on vertical restraints.
(*) Oles Andriychuk (o.andriychuk@uea.ac.uk) is a postdoctoral research fellow at the ESRC Centre for Competition Policy, University of East Anglia. The author is very grateful to the Centre for Competition Policy (Norwich) and to the European University Institute (Florence) for providing a genuinely interdisciplinary environment for research and to the anonymous referees for providing very useful comments. The usual disclaimer applies.

746 Key words:

DOTTRINA

Vertical restraints; dual distribution agreements; double-marginalisation; Commission Regulation on vertical restraints; intra-brand competition. JEL Classication: K Law and Economics; K2 Regulation and Business Law; K21 Antitrust Law; K23 Regulated Industries and Administrative Law.

SUMMARY: 1. Normative background. 2. EU Rules on vertical restraints. 2.1. Dual distribution agreements. 2.2. Competition and welfare. 2.3. Procompetitive aspects of anticompetitive agreements. 2.4. The signicance of intra-brand competition. 2.5. The problem of double-marginalisation. 3. Conclusion.

1. Normative background. The formal task of competition law is (i) protection and (ii) promotion of the process of competition within the internal market. The rst task is negative or preventive. Its essence is in the developing and application of the (predominantly ex post) rules which disable any signicant encroachment into the competitive process. The second task is positive or proactive. It is characterised by the set of (usually ex ante) policies and ad hoc actions of antitrust enforcers directed to the improvement and melioration of the competitive process. The ambiguities and controversies which the relationship between (as well as within) these two antitrust instruments raises, comprise set of problems sufcient for the stricto sensu antitrust research. It is only for the broader, applied part of competition policy to deal with the problems of reconciliation of competition with welfare-centred values and/or the role of competition in the achievement of these public goals. However, the current emphases in antitrust policy and law are placed almost exclusively on its second, applied, function, whereas the rst, conceptual, part is seen as at best obsolete, non-pragmatic historical rudiment of antitrust. The main attention of this paper is focused on the regulation on vertical restraints. For this reason the normative argument on constitutionality of competition will be only made as a set of statements without in-depth analysis which have been undertaken in several separate pieces