Resale Price Maintenance and Article 101: Developing a More Sensible Analytical Approach

This essay examines how European competition law can move toward an improved analytical framework for resale price maintenance ("RPM") cases consistent with the view of European competition law as a consumer welfare prescription. Before addressing RPM issues directly, Part I summarizes a few ground rules on the analytical framework in article 101 TFEU ("Treaty on the Functioning of the European Union") cases in an economics-based competition regime. This Part should help avoid the circularity of the argument that a restraint such as RPM should be considered a “restriction by object” under article 101(1) TFEU because it is characterized as a “hardcore” violation in a Commission block exemption regulation, and conversely, it is classified as a “hardcore” violation because it is a “restriction by object.” This part should also help allay concerns that moving RPM out of the “hardcore” comfort zone would automatically convert RPM analysis into a morass of endless inquiries and steep evidentiary requirements where, in the end, a plaintiff or competition authority would almost invariably lose, even in cases where RPM is harmful.