The "modern" style of regulation heavily rested on the premise that the ability of a vertical agreement
to produce anticompetitive effects hinges predominantly on the market power of the manufacturer making use of such restraints.
Given that the rules on vertical agreement
are only reviewed once every 10 years, it is disappointing that the commission has not taken a more radical look at the way the rules operate in practice.
Ignoring the well-founded and substantiatedC* arguments submitted during the procedure, the CPC adopted the charge of supposed vertical agreement
between the company and its petrol stations," an EKO statement said.
But the court's response--shoehorning a vertical agreement
into a category of horizontal restraints traditionally considered per se illegal--establishes a dangerous precedent.
Because the same market share threshold is used to prohibit both collusive and unilateral conduct, (48) anticompetitive effects caused by a vertical agreement
in which one of the parties has a market share of thirty percent or more will be scrutinized under the provisions relating to abuse of a dominant position rather than those relating to anticompetitive agreements.
According to the CPC's statement, released yesterday, the companies were found to be guilty of both horizontal agreement (among themselves) and of vertical agreement
(between firms up or down the supply chain from one another).
In particular, I believe that it should have been recognized in the Regulation that it is extremely unlikely--and probably impossible that there is harm in the market and to consumers as a result of any type of vertical agreement
if all the firms involved have a small enough market share, thus essentially favoring a de minimis approach to such agreements.
Instead, it was the vertical agreement
between a manufacturer and its distributor to engage in RPM that was illegal.
Substantive scrutiny of a vertical agreement
under Article 81 thus requires an analysis of whether it restricts competition within the meaning of Article 81(1) and, if it does, whether it meets the Article 81(3) criteria and so is excepted from the Article 81(1) prohibition.
Significantly, in a recent health care antitrust conspiracy case, the Tenth Circuit addressed that issue, at least in the context of an alleged vertical agreement
involving a health plan and its specialty suppliers of health services.
Under article 7 of regulation 2790/99, a national competition authority might withdraw the benefit of the block exemption in respect of a vertical agreement
where the effects of the agreement are felt on the territory of the member state, or part thereof, "that has all the characteristics of a relevant geographic market.
The amended Slovak law, as noted in the previous section, removes the de minimis exception from the provision addressing agreements, meaning that in principle any two firms involved in a vertical agreement
may be prosecuted if the agreement is judged to be one "whose object or effect is or may be the restriction on competition.