Friday, March 20, 2009
Posted by D. Daniel Sokol
Paul Lugard (Royal Philips Electronics) and Joost Haans (Royal Philips Electronics) offer Ten Points to Consider When Reviewing Regulation 2790/1999. Paul is one of the most thoughtful antitrust GCs in Europe. I have had the pleasure of serving as a non-governmental advisor in the ICN unilateral conduct working group with him. Paul also wrote a chapter in the most recent volume of Barry Hawk's International Antitrust Law & Policy: Fordham Competition Law 2008.
ABSTRACT: Block Exemption Regulation 2790/1999 (also referred to as the “BER”), the single most important legislative instrument in European antitrust law in the field of mainstream vertical restraints, has been in force for more than nine years. The Regulation that provides for a safe harbor for distribution agreements and other types of vertical agreements involving firms with market shares not exceeding 30 percent will expire on May 31, 2010.
The accompanying EC Guidelines on Vertical Restraints (the “Guidelines”) setting out the methodology of analysis for vertical restraints including those that fall outside the safe harbor of the BER will share that fate....
The time has come to consider whether these and other points of criticism voiced at the time have materialized, how the Regulation has functioned in practice, whether the Regulation and Guidelines are in need of modification, and, if so, what must be done. This contribution contains some modest suggestions for the issues that the Commission may want to consider before embarking on modification of the BER.