Resale Price Maintenance: Antitrust Review of Vertical Agreements

In this article, I assess the current state of law on vertical agreements with respect to EU competition law prohibitions and U.S. antitrust law. The focus of the article is the practice of vertical price control, more commonly known as resale price maintenance (RPM), and which can be found in. e.g., distribution agreements. Such contract terms can generate both positive and negative effects on competition but are generally regarded as a particularly severe form of restriction of competition, rendering such practices disqualified from block exemptions under EU competition law. One of the main questions is whether such 'hardcore' restriction can-or should-be likened with a restriction by object under Article 101(1) TFEU and what this may entail for enforcement agencies and undertakings in terms of procedure. Albeit an ostensibly severe restriction, the analysis indicates that RPMs should not generally be equated to 'by object' restrictions and that it is necessary to carefully appraise the effects of such terms and to consider commercial context within which they are applied.