Whose Regulation, Which Competition?
ASCOLA Competition Law series
Edited by Hanns Ullrich
Comment Wolfgang Kerber* 1 INTRODUCTION The enactment of Regulation 2790/99 on vertical restraints was – as Waelbroeck rightly emphasises – an important first step in the process of modernisation of European competition policy. It sought to take into account more the economic effects of vertical restraints and to enhance legal certainty and enforcement efficiency. In contrast to Regulation 1400/2002 on the motor vehicle sector, this general regulation on vertical restraints led to a liberalisation process. Waelbroeck’s paper analyses the experience made with this regulation in recent years and suggests some specific and clear proposals for its improvement. At first glance, these proposals seem to be a logical next step in the development of the EU policy on vertical restraints. However, I do not agree with his statement that these proposals would only imply ‘relatively minor changes and adjustments’.1 On the contrary, I think they are far-reaching and raise additional fundamental questions about the overall architecture of European competition policy. 2 IS THE MARKET SHARE THRESHOLD OF 30 PER CENT TOO RESTRICTIVE? Waelbroeck’s first proposal is to abolish the market share threshold in the Regulation 2790/99. This would imply that all vertical agreements (except hardcore restrictions) are permitted, independently of the firms’ market shares. As long as there are competition problems through vertical restraints, they should be solved by applying Article 82 EC (abusive behaviour by dominant firms). The economic analysis of the effects of vertical restraints, and therefore Prof., Dr. rer. pol., Philipps-Universität, Marburg. Waelbroeck, ‘Vertical Agreements: 4 Years of Liberalisation...
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