Vertical Restraints: Towards Guidance to Iron Out Perceived Enforcement Discrepancies Across Europe?

Sahuguet, Nicolas; Steenbergen, Jacques; Vergé, Thibaud; Walckiers, Alexis

doi:10.1093/jeclap/lpw007

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“…Some would have liked to receive this guidance through the e-commerce sector inquiry, but also see opportunity in a staff working paper. 124 Others think that this guidance should be offered through enforcement decisions, 125 and still others would prefer a referral to the CJEU. 126 In any case, NCAs are not waiting: the CMA is currently carrying out an extensive market study on PCWs, 127 while the Dutch Competition Authority has included retail MFNs in its enforcement priorities.…”

Section: Recent and Future Developmentsmentioning

confidence: 99%

Most Favoured Nation Clauses:

Bostoen¹

2017

European Competition and Regulatory Law Review

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It is often argued that most favoured nation clauses (MFNs) should be assessed on a caseby-case basis given the perceived lack of a coherent theory guiding their assessment. This article asks whether this is the case: do we lack an assessment framework of MFNs under EU competition law? In answering this question, regard is had to both older case law and the most recent developments. Taken together, most of the issues in assessing MFNs do appear to be generally agreed upon. Moreover, legal scholarship complements the theory where the courts and authorities did leave a question open. Thus, it is offered that we are indeed well on our way to a clear assessment framework of MFNs under EU competition law. 8 Commission, 'Commission secures changes to gas supply contracts between E.ON Ruhrgas and Gazprom' (Press release, 10 June 2005) IP/05/710 . 9 Commission, 'Commission closes investigation into contracts of six Hollywood studios with European pay-TVs' (Press release, 26 October 2004) IP/04/1314 . 10 LEAR (n 2) 4.49. 11 Explicitly in all of the aforementioned MFN cases except for Hollywood studios, where it did so implicitly. 12 Andre Boik and Kenneth Corts, 'The Effects of Platform Most-Favored-Nation Clauses on Competition and Entry' (2016) 59 Journal of Law and Economics 105. 13 This is how Rochet and Tirole, pioneers of multi-sided market theory, described them: Jean-Charles Rochet and Jean Tirole, 'Platform competition in two-sided markets' (2003) 1 Journal of the European Economic Association 990; they have been described similarly ever since, see eg the recent endorsements by Ofcom, the CMA and professors Clemons, Ezrachi, Strowel, Stucke and Vergoute in House of Lords Select Committee on European Union, 'Online platforms and the Digital Single Market' (Report of Session) 2016, 19.

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Section: Recent and Future Developmentsmentioning

confidence: 99%

Most Favoured Nation Clauses:

Bostoen¹

2017

European Competition and Regulatory Law Review

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Vertical Restraints: Towards Guidance to Iron Out Perceived Enforcement Discrepancies Across Europe?

Cited by 1 publication

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