US and EU antitrust policy objectives and the legal status of the hardcore vertical restrictions: absolute territorial protection and minimum resale price maintenance

摘要

This thesis is concerned with the identification and analysis of the policy objectives of US antitrust and EU competition law, with particular reference to the hardcore vertical restrictions, absolute territorial protection (ATP) and minimum resale price maintenance (RPM). It does not critique the identified policy objectives as such, but it does critique the underlying economic principles through which they are interpreted to assess whether the US and EU legal positions on the hardcore restrictions are logically justifiable.ududAs such, two chapters are dedicated to the identification of the objectives of US antitrust policy and EU competition policy, respectively. This is done through analysis of their legal development, and political and historical context. They conclude that the promotion of consumer welfare has become the sole objective of US antitrust policy, but that EU competition policy has retained a multifaceted set of objectives, including the protection of market integration and the promotion of effective competition, as well as the welfare objectives the EU has adopted more recently.ududThe final chapter assesses whether the US and EU legal positions on the hardcore vertical restrictions are logically justified by the policy objectives of each jurisdiction identified in the previous chapters. It considers the development of the legal positions in detail, and goes on to critique the economic analysis of vertical restraints under which the restrictions have been considered. It concludes that the EU justifies its absolute prohibition of both hardcore restrictions under its multifaceted set of competition policy objectives, but that the US can only logically justify its rule of reason for ATP under the sole objective of consumer welfare, while minimum RPM should have continued to be subject to per se illegality. The Leegin decision to permit minimum RPM subject to a rule of reason relied on flawed analysis of its economic effects.