Presumptions as Appropriate Means to Regulate Resale Price Maintenance: In Defence of Structuring the Rule of Reason

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Series Details Volume 8, Number 3, Pages 497-525
Publication Date September 2012
ISSN 1744-1056
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"The US Supreme Court’s decision in Leegin Creative Leather Products, Inc v PSKS Inc has triggered a growing debate about the well-known distinction between conduct that is per se illegal and conduct judged under the rule of reason, and about the reasonableness of categorical distinctions the courts draw, either to help delineate the scope of the per se rule or to create distinctions within the scope of the rule of reason itself. At the same time, the expiration of the EU’s decade-old Vertical Restraints Block Exemption Regulation has prompted a more global re-examination of the economic and legal standards for evaluating resale price maintenance. While minimum resale price maintenance was de facto per se illegal in the EU, the new Vertical Restraints Block Exemption Regulation does not label resale price maintenance as per se illegal but, rather, reflects a softening of the Commission’s approach.

However, even the former generation of EU block exemption regulations and guidelines were based on the conception that an analysis of both negative and positive effects on the market is necessary in order to determine how authorities should reasonably deal with resale price maintenance agreements. The same methodology was subsequently adopted in block exemption regulations and guidelines regarding technology transfer and horizontal cooperation agreements, and later put forward with respect to the application of Article 102 TFEU."
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