Anticompetitive foreclosure and the coherence of competition policy towards vertical restraints

Recent case law of the European Courts, the recent guidelines of the European Commission on non-horizontal mergers, the decisional practice of the European Commission as well as that of various national competition authorities and courts seem to focus on the possible anticompetitive foreclosure effects of vertical relations. However, EC competition policy toward vertical relations producing anticompetitive foreclosure effects is shaped by the specific characteristics of the competition provisions that may apply in each case (Article 81, Article 82, merger control) and/or the classification of the vertical restraint in a specific category type (price versus non-price restraints, unilateral versus collusive practices or specific “antitrust” categories, such as exclusive dealing, price squeezing, tying, rebates, predatory pricing, refusal to deal of licence etc). The session critically assess the coherence of EC competition policy (Article 81, Article 82 and merger control) towards vertical relations producing an anticompetitive foreclosure effect and examines the arguments for or against a unified framework in dealing with foreclosure effects produced by vertical restraints.

Vertical restraints and forclusion effect: Is there a consistent EC approach? Frédéric JENNY President of the Competition Committee, OECD Conseiller à la Cour de cassation en service extraordinaire 1. After having looked at the relationship between vertical restraints and market integration and at the very controversial topic of vertical restraints and resale prices, we are now looking at vertical restraints and foreclosure, an interesting topic for several reasons, as has been made clear already today. Exclusionary practices are an important anti-competitive concern these days: they show up in number of circumstances, they show up in abuse of dominance cases, they show up in vertical restraints, they even show up in horizontal restraints. The issue that we are going to look at is

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  • Freshfields Bruckhaus Deringer (Paris)
  • University Paris-Panthéon-Assas
  • Arnold & Porter Kaye Scholer (Brussels)
  • ESSEC Business School (Cergy)
  • Compass Lexecon (Paris)
  • DG Economic and Financial Affairs-ECFIN (Brussels)
  • Latham & Watkins (Brussels)


Jérôme Philippe, Laurence Idot, Luc Gyselen, Frédéric Jenny, David Sevy, Kay Parplies, John Kallaugher, Anticompetitive foreclosure and the coherence of competition policy towards vertical restraints, December 2008, Concurrences N° 4-2008, Art. N° 22114,

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