Kerber, Wolfgang; Zach, Roger --- "Comments" [2006] ELECD 302; in Ullrich, Hanns (ed), "The Evolution of European Competition Law" (Edward Elgar Publishing, 2006)

Book Title: The Evolution of European Competition Law

Editor(s): Ullrich, Hanns

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427016

Section Title: Comments

Author(s): Kerber, Wolfgang; Zach, Roger

Number of pages: 10

Extract:

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 liberalisa-
tion process. Waelbroeck's paper analyses the experience made with this regu-
lation 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-reach-
ing 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., ...