Vertical Agreements and Competition Law: A Comparative Study of the EU and US Regimes PDF
Preview Vertical Agreements and Competition Law: A Comparative Study of the EU and US Regimes
(A) Marco Colino Prelims 7/12/09 15:55 Page i VERTICAL AGREEMENTS AND COMPETITION LAW This book focuses on the current legal framework for vertical agreements in the EC and the US. Over the last ten years, antitrust rules governing these agreements have undergone thorough reform. In the EC, the old sector-specific block exemptions were replaced by Regulation 2790/99, applicable to all sectors of the economy. In addition, changes introduced to the procedural rules have led to the decentralisa- tion of Article 81(3) and the removal of the notification requirement. In like man- ner, in the US the Supreme Court has gradually taken vertical restraints out of the per se illegality rule. What Sylvania achieved in placing non-price vertical restraints under the rule of reason in the late 1970s, the Khan judgment did for maximum resale price maintenance in 1997, whilst most recently and most significantly in 2007 the Leegin case followed suit for minimum resale price maintenance. The book is divided into four chapters. The first chapter considers the ‘double nature’ of vertical agreements and the regulatory dilemma. The second chapter explores the most influential economic theories underpinning current regulatory frameworks, and how these theories shape antitrust policy. The third chapter questions the adequacy of the current economic analysis in recent EU and US legislation and court decisions. The fourth chapter analyses how this maturing economic analysis can be reconciled with what commentators and regulators have identified as a key role for competition policy, redressing assumed imbalances between dealers and manufacturers. The author concludes by querying the prevailing logic of protecting sectoral interests above the competitive process. (A) Marco Colino Prelims 7/12/09 15:55 Page ii (A) Marco Colino Prelims 7/12/09 15:55 Page iii Vertical Agreements and Competition Law A Comparative Study of the EU and US Regimes Sandra Marco Colino OXFORD AND PORTLAND, OREGON 2010 (A) Marco Colino Prelims 7/12/09 15:55 Page iv Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Sandra Marco Colino 2010 Sandra Marco Colino has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-871-8 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall (A) Marco Colino Prelims 7/12/09 15:55 Page v Dó Máirtín (A) Marco Colino Prelims 7/12/09 15:55 Page vi (A) Marco Colino Prelims 7/12/09 15:55 Page vii Acknowledgements The present book is based on my doctoral thesis, entitled Towards a Sound Economic Analysis in Competition Law? The New Regulatory Framework for Motor Vehicle Distribution Agreements in the EU. It was defended at the European University Institute in Florence in May 2007 before a panel consisting of Professors Christian Joerges, Luis Ortiz Blanco, Barry Rodger and Heike Schweitzer. Despite the nar- rower focus of the dissertation, my research led me to explore the minutiae of ver- tical agreements and directed me to innovative ideas on how to regulate these contracts. The seed of the monograph was therefore planted in 2001, when I began my research at the EUI, and was moulded into its final shape in various institutions around the world. The initial impetus of fascination, curiosity and instinctive ideas about a topic which proved more demanding than I could have ever expected soon made me realise the magnitude of the task I had undertaken. The fruit of my exten- sive investigation would never have ripened had I not been fortunate enough to have encountered true experts along the way willing to provide me with the guidance and knowledge I needed to achieve my objectives. The most crucial orientation came from my supervisor, Professor Christian Joerges, whose extensive knowledge and endless patience guided me along the years to overcome the hurdles I encountered. I was also extremely fortunate to be able to benefit from the guidance of Professors Hans Ullrich, Massimo Motta, Ernst-Ullrich Petersmann, Claus-Dieter Ehlermann and Giuliano Amato, to whom I am extremely grateful. My frequent research travels and study visits have proved crucial in my writing. My second research home was the Institute of European Studies in Madrid, where over the years Professor Jerónimo Maíllo González-Orús provided me with the encouragement and guidance I needed to embrace this project. In addition, the solid support of the academics at the Universidad Carlos III of Madrid was most valuable. Special thanks are owed to Professor Carlos Moreiro González. Also, I want to thank the academic staff at the Fachhochschule Mainz in Germany, where during my Erasmus visit in 1999 I was persuaded to undertake my first ever project on vertical agreements—the seed of my interest in the area. This study is based on a comparison between the EC and US antitrust regimes. Such a comparative approach was possible thanks to the possibility I had to spend two semesters as a visiting scholar in the US. In 2003, I spent one semester at the University of Wisconsin at Madison. I am particularly grateful to Professor Peter C Carstensen for his support in my visiting the University and his inspiring advice. His generosity and kind hospitality made my stay in Madison a true delight. During my visit, I also had the chance to discover Professor Neil K Komesar’s theories—which have proven very influential in the structure of my work—as well as his sense of humour. Besides, the expertise of Professor Stewart Macaulay (A) Marco Colino Prelims 7/12/09 15:55 Page viii viii ACKNOWLEDGEMENTS and the hospitality of the EU Studies Alliance, in particular Professor David Trubek and Pam Hollenhorst, greatly contributed to my fruitful experience in Madison. More recently, I was a visiting scholar at the University of California at Berkeley while on research leave from the University of Glasgow. I want to express my gratitude to the Center for the Study of the Law and Society, and particularly to Rosann Greenspan and Meg Gentes. In 2004, I had the chance to work as a trainee in the Directorate-General for Competition of the European Commission. I spent five months within the now defunct Unit F2, which dealt specifically with car distribution issues. This unique opportunity to work with the best team of experts on my research area was invalu- able, particularly given the constant attention and generosity of those I worked in close contact with. I would particularly like to thank Konrad Schumm, Paolo Cesarini, Rainer Becker, Bertrand Saint-Aubin, Iona Hamilton, Hubert Gambs and Fernando Castillo de la Torre. The final stage of this project was completed while holding a post as a Lecturer in European Law at the University of Glasgow. The demanding challenge of teaching competition law both at undergraduate and postgraduate level to enthu- siastic, bright students forced me to grasp a fuller understanding of antitrust. My colleagues have been at all times supportive, particularly in the stressful final stages of my Ph D and the monograph. Their comments and advice have proven most useful in the development of my conclusions. I owe thanks to all of them. Over the years, I have taken part in many conferences, seminars and events around the world. In my involvement I managed to collect essential materials and also hear the constructive criticisms of experts which have aided me enormously. Some of the institutions I would like to thank are the Competition Law Scholars Forum (CLaSF), the Europäische Rechtsakademie (ERA), the European Union Studies Association (EUSA), the European Community Studies Association (ECSA), the Industrial Organisation Society (IOS), the Athens Institute for Education and Research (ATINER), the Private Law in a Multicultural and Multilingual European Society (PrIME) Project within the University of Helsinki, the Transatlantic Technology Law Forum (TTLF) of Stanford University and the Instituto de Estudios Bursátiles of Madrid. I am particulary grateful to Professors Luis Ortiz Blanco, Barry Rodger, Alan Riley, Oliver Budzinski, Jens Hammer and Kathleen W Johnson. Any academic merits hereby achieved would never have materialised without my family and friends. I owe everything to my family for always believing in me, in particular to my loving parents. Where I would be without their help is hard to imagine. My unconditional friends from Ciudad Rodrigo, London, Madrid, Mainz and Las Palmas, as well as those encountered in Florence, Madison, Brussels, Glasgow and Berkeley—to name but a few—have, throughout this pro- ject and beyond, aided me more than they will ever know. Last but by no means least, I want to thank my husband Martin Doris for his constant and uncondi- tional support. Glasgow, October 2009 Sandra Marco Colino (A) Marco Colino Prelims 7/12/09 15:55 Page ix Note to the Reader: The Impact of the Treaty of Lisbon on this Book On 1 December 2009, the Treaty of Lisbon entered into force after ratification by Ireland and the Czech Republic, the only countries to have not ratified previously. This book was finalised in September 2009, and therefore still uses the numbering of the provisions of the Treaty Establishing a European Union (EC Treaty) as modified by the Treaty of Amsterdam in 1996. Apart from the renumbering of the Treaty articles, the new amendments do not significantly alter the content of competition law provisions, and the content of the book is not affected by the changes. Importantly, Article 3(1)(g) EC, which referred to ‘a system ensuring that competition in the internal market is not dis- torted’ as a means to achieve the general objectives of the Community has now been repealed. This does not, however, alter the substance of competition law and policy in the EU. The EC Treaty is now the Treaty on the Functioning of the European Union. As a result, it is no longer appropriate to refer to the European Community, as it is now the part of European Union. Any references to Community should be read as Union, and likewise EC competition law is now EU competition law. Other important terminology issues are that the Court of First Instancehas been renamed as the General Court, and the common market has been replaced by the internal market. The reader should also note that, as of 2010, Neelie Kroes will be replaced by Joaquín Almunia as the EU Competition Commissioner. A full table of equivalences has been published in the Official Journal;1below are the equivalences of the relevant provisions discussed in this book as they appear in the table. Treaty on the Functioning of the European Union Old numbering of the Treaty Establishing New numbering of the Treaty on the European Community Union the Functioning of the European Article 2 (repealed) 2 Article 3, paragraph 1 (repealed) 3 Article 5 (replaced)4 Article 30 Article 36 Article 81 Article 101 1[2008] OJ C 115/361. 2Replaced, in substance, by Article 3 TEU. 3Replaced, in substance, by Articles 3 to 6 TFEU. 4Replaced, in substance, by Article 5 TEU
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