La complexité des choses simples: la fixation du prix de revente et le droit des ententes

Éric David

Revue internationale de droit économique, 2005, vol. t. XIX, 4, issue 4, 389-430

Abstract: Resale price maintenance seems to be a non-issue. All antitrust laws prohibit this practice. As a restraint of price competition, such a restraint is not in the interest of the competition process. But, as an intra-brand restraint, resale price maintenance may produce positive effects on competition. To take this ambivalence into account, antitrust authorities can give a strict interpretation of agreements or can accept exceptions to the prohibition of resale price maintenance. Under American law, unilateral action is widely interpreted. In Europe, concerted action is more accepted. But, since 2000, European case-law requires strict demonstration of the agreement. The theory of transaction cost economics shows that some intra-brand restraints must be accepted. In American law, manufacturers are free to choose distributors. Sellers can refuse to deal with a discounter who does not respect the retail price level they set. This is not a concerted action, but an unilateral conduct. The fact that the seller refuses to deal with a discounter following a complaint of one distributor does not allow to infer the existence of concerted action. Recommended prices are not considered to represent concerted action. In Europe, however, refusals to deal or recommended prices are generally held to constitute concerted action. The buyers? freedom is essential. In most of cases, a restraint of this freedom is a concerted action. Vertical agreements are thereby more widely defined than horizontal ones. Although European case-law is changing, the manufacturers? freedom is still not absolute. Not all resale price maintenance practices are illegal. Under American law, recommended prices are never illegal. Maximum price agreements are judged under the rule of reason. Other forms of resale price maintenance are per se illegal. In Europe, recommended prices or maximum prices can be illegal when they amount to inter-brand price restraints. Other resale price maintenance systems are per se illegal. Nevertheless, the French Council of Competition takes an ambiguous position concerning the per se rule, which has to be criticized. Finally, resale price maintenance is a not that obvious question. Answers are vary. They depend on the belief in the markets? self-regulatory capacity. If we believe that monopolistic prices are pro-competitive because they constitute an invitation to enter the market, we tend to accept price restraints. If we rather insist on protecting all firms? freedom of competition, we reject such restraints. We propose to accept some minimum price maintenance practices to protect distribution networks from discounters.

Keywords: intra-brand competition; relationship between manufacturers and distributors; esale price maintenance (search for similar items in EconPapers)
Date: 2005
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