Distribution, Competition, and Antitrust / IP Law

Antitrust Issues In Retail Networks Can Be Difficult to Find

According to presenters at a Global Competition Review panel today, antitrust problems in retail networks can be difficult to find.  For the report on the panel, click here (sorry, it may be behind a paywall).

The article reports that according to the panel, antitrust cases in the retail sector are becoming more and more complex, frequently including hub-and-spoke conspiracies and most favored customer cases as well as resale price maintenance (RPM).  The panel included European regulators from Germany’s Federal Cartel Office, France’s Competition Authority, and Belgium’s Competition Council.

At least some panelists advocated for a more interventionist approach when dealing with decreased competition and vertical cartels in the European retail market.

I’m not sure about that conclusion, but I do agree that there are competition and distribution law issues lurking in many retail networks.  See, e.g., the Tempur-Pedic case I reported on earlier today.

European Union Court of Justice Examines Restrictions on Online Distribution

Can a manufacturer stop its distributors from selling products online to end consumers? It may want to do so to prevent online resellers from free-riding on the efforts of its brick-and-mortar merchants.

The EU’s Court of Justice will soon decide in the case of Pierre Fabre Dermo-Cosmetique SAS v. President de l’Autorite de le Concurrence & Ministre de l’Economie (C-439/09). An advocate general to the Court, Jan Mazak, recommended on March 3 that the Court hold that an absolute ban on selling goods online has as its “very object” the restriction of competition and so violates Article 101(1) TEFU. (This does not mean that such a ban would be per se unlawful, as that concept is understood in U.S. antitrust law, but it does mean that such a ban would be quite unlikely to satisfy EU competition law.) Under guidelines recently released in connection with the European Commission’s Vertical Block Exemption Regulation, at least in principle, every distributor must be allowed to use the Internet to sell products. If the Court adopts the recommendation, it will highlight yet one more difference between European and U.S. competition/distribution law – for decades in the U.S., non-price vertical restraints have been evaluated under a relaxed Rule of Reason analysis that takes into account all competitive and anti-competitive effects of a restriction. See United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967).

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