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

AuthorJoseph G. O'Hanlon
PositionSenior Sophister Law student, Trinity College, Dublin
Pages104-117
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.

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