EC Competition Law and the Market for Exclusionary Rights

A commonplace classification used in antitrust analysis distinguishes between restraints affecting firms that operate on the same level of the productive process (horizontal restraints) and restraints on firms operating at different stages of said process (vertical restraints). While remaining useful for analytical purposes this distinction has recently come into question, as the emphasis has come to be placed on the competitive effect (centered on the horizontal aspect) of vertical restraints. The purpose of this paper is to explain how this paradigm shift has been taking place in economic theory and what consequences it may spell out for EC competition policy in the field of vertical restraints. Due to time and space limitations, only exclusive dealing agreements (whereby a dealer undertakes to obtain its supplies of good x from supplier Y and not to handle competing goods from Y's rivals) will be dealt with here