The Ghost at the Banquet? Article 85, Vertical Restraints and the Application of the Rule of Reason

• Author: Joseph G. O'Hanlon
• Position: Senior Sophister Law student, Trinity College, Dublin
• Pages: 104-117

Trinity

College

Law

Review

THE

GHOST

AT

THE

BANQUET?

ARTICLE

85,

VERTICAL

RESTRAINTS,

AND

THE

APPLICATION

OF

A

RULE

OF

REASON

APPROACH.

JOSEPH

G.

O'HANLON*

Introduction

The

question

of

the

application

of

a

rule

of

reason

approach

in

European Community

competition

law

has

generated

considerable

academic

controversy

from the

very

early

days

of

common

market

competition

law'

right

up

to

the

present

day.

2

Would

an

American

antitrust

law doctrine

really

work

if

imported

into

the

rather

different

European

Union

legal order?

Would

adopting such

an

approach

in

the

European competition

law

system be

a

desirable

step

to

take?

Or,

indeed,

as

some

commentators argue,

3

is

a

rule

of

reason

approach

already

extant

in the

case law

on

Article

85?

Should

this

rule

of

reason

approach

be

entrenched

and

expanded?

In

endeavouring

to

answer these

questions,

I

will

examine

the

case

law

of

the

European

Commission, Court

of

First

Instance,

and

Court

of

Justice

of

the

European

Communities

under

Article

85,

as well

as

the

policy

objectives

of

European

competition

law,

all

in

comparison

where

necessary

with

U.S.

antitrust

law

and

Irish competition

law.

The

focus

will

be

on

the

treatment

of

vertical

restraints,

as

this

is

on

the

whole

a

more

fertile area

for the

application

of

a

rule

of

reason

approach than

horizontal

restraints,

which

are

generally

per

se

4

illegal.

It

would

be

helpful

to

begin

with

an

examination

of

what

Senior

Sophister

Law

student,

Trinity

College,

Dublin.

Rene

Joliet,

The

Rule

of

Reason

in

Antitrust

Law; American,

German,

and

Common

Market

Laws

in

Comparative

perspective

(1967).

2

Christopher Bright,

"EU

Competition:

Rules,

Objectives

and

Deregulation"

(1996)

16

Oxford

Journal

of

Legal

Studies

535.

3

Bellamy

and

Child,

Common

Market

Law

of

Competition,

(4th

ed.,

1993),

at

pp.65-107.

4

Whish,

Competition

Law,

(3rd

ed.,

1993),

chapter

12.

[Vol.