03 April 2007

Resale Price Maintenance: the per se rule is going, going...

The US Supreme Court is hearing a case (Leegin Creative Leather Products, Inc. v. PSKS, Inc.) where it is being asked to overrule the rule which makes resale price maintenance agreements per se illegal. Obviously these are also black listed in the EC under the Block Exemption for Vertical Restraints. Some think that the Court will overrule the per se rule established in Dr. Miles, and judging by the transcripts of the oral argument, this seems likely.

I'll debate the minutiae of the rule another time, but I can't help notice that the US government has submitted an amicus brief supporting the overruling of the old cases. This is how antitrust authorities should be getting rid of old doctrines. Not by publishing guidelines in the hope that people will forget the case law. Reform of Article 82 in Europe should follow this track: incremental or radical alterations by the European Court of Justice that erode precedents that are seen as unsuitable.

1 comment:

Anonymous said...

Hey Mr. Monti; now you will publish your book on EC Competition Law and then you will become a judge who changes the case law into the right directions (...like Bork and Posner did in the US).

sorry, this was not a really serious comment;

but I share your opinion that it is rather the case law than the guidelines that will have the power to change the law. However, I still think that the Commission should try to change the law. Maybe it would be more helfpul if it tried to apply the new approach in specific cases in the hope that the courts will follow