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Autorentext
Dr. Christy L. Kollmar, Esq. has been a licensed practicing attorney in the United States since 2007 and is a member of the District of Columbia, Wyoming, Montana and Washington bars, including five federal court jurisdictions. After obtaining her Baccalaureate of Arts (BA) from University of Montana, a Juris Doctorate (JD) from Nova Southeastern University, a Master of Business Administration (MBA) from College of William & Mary, and a Master of Global Management (MGM) from Thunderbird School of Global Management, she relocated to Europe and attained a Master of Laws (LL.M.) from Riga Graduate School of Law and a Doctor of Philosophy in Law (Ph.D.) from University of Copenhagen.
Prior to her continued legal education, she served as a prosecuting attorney focused on drug and familial abuse crimes, followed by managing her own US federal and state-level criminal defense practice (Kollmar Law Office, PLLC.) focused on felony criminal litigation. Alongside of maintaining her criminal practice, Dr. Kollmar currently serves as a postdoctoral researcher at University of Copenhagen, Centre for Advanced Studies in Biomedical Innovation Law with a particular focus on comparative antitrust law and economics, where her academic portfolio comprises diverse supervision and lecturing in EU Law, Comparative Contracts, EU Competition Law and Economics, and Legal Research Methods.
Zusammenfassung
The question of how to properly enforce against RPM has been a contentious debate for decades on both sides of the Atlantic. The catalyst is the acceptance that RPM can generate both anti-competitive effects and pro-competitive efficiencies that need to be properly balanced to ensure against Type I/Type II errors and to create viable legislation. Part I focuses on 100 years of US origins and the current legal approach to VR enforcement, which reveals the precedent responsible for the transition between per se illegality and the rule of reason thresholds at the federal level. Nine anti-competitive and 19 pro-competitive theoretical models are also introduced to clearly demonstrate the true nonconsensus existent between economists as to whether RPM is deleterious enough to justify a stringent approach to RPM regulation. Part II closely examines the EU origins and current legal structure, where RPM has maintained its hardcore by-object designation pursuant to Art. 101(1) TFEU with the consequence of having no safe harbours, no applicability of the De Minimus Doctrine, an onerous negative rebuttable presumption, non-severability of the agreement and almost no chance of obtaining an exemption under Art. 101(3). This is exacerbated by the EC's lack of guidance on how to prove all conditions necessary for an Art. 101(3) exemption and when a vertical arrangement actually escapes Art. 101(1) applicability. The aim of this book is to examine the economic models, historical origins and legal structures of the US/EU regimes to develop proposals on how to modify the EU's current legal structure to ensure proper enforcement of RPM behaviour that actually enhances legal certainty through a more aligned approach at the national level. Part III proposes five solutions which scrutinise the concepts of appreciability, hardcore and by-object restraints, to implement modifications to EU's current legal framework to ensure RPM receives reasonable and equitable treatment in line with economic theory.
Inhalt
Contents
Preface
List of Abbreviations
List of Annexes and Tables
Chapter 1 Introduction
Abstract
Topic Introduction
Background on Assessment and Application: Legal Issues and Development
Background on Enforcement Best Practices: Investigative Techniques and Enforcement Protocol
Research Objectives and Main Research Questions
Structure and Scope of Book
Conclusory Remarks
PART I US HISTORICAL ORIGINS AND ECONOMIC FOUNDATIONS
Chapter 2 The Legal and Political Origins of RPM United States
Abstract
United States: Historical Origins & Legal Structure of RPM
The Introduction of the Sherman Act and its Common Law Roots: 1889-1910
Dr. Miles Era- the Right of Alienation and its Per Se Impact: 1911-1930
Fair Trade Era- Carving out Exceptions to the Sherman Act: 1930-1975
Post Fair Trade Era- Non-Price vs. Price Transition Towards Rule of Reason: 1975 2007
Leegin Era- Maximum vs. Minimum RPM Transition Towards Rule of Reason: 2007 Present
Chapter Conclusion: US Historical Origins and Legal Structure
Chapter 3 The Economics of Vertical Agreements Background
Abstract
Chapter Introduction
General Economic Background of Vertical Restraints
General Economic Background of RPM
Background on Economic Theories of RPM
Link Between Schools of Thought and Economic Models
General Structure of Models: Vertical and Horizontal Elements of RPM
Digital Single Market, the E-Commerce Sector Inquiry and the Internet
Goals of the EC: Digital Single Market and E-Commerce Sector Inquiry
Models of Change: How the Internet Changed Market Dynamics
Conclusion: RPM Economic Background and E- Commerce
Chapter 4 The Economics of Vertical Agreements Models
Abstract
Anti-Competitive vs. Pro-competitive Economic Models of RPM
Anti-Competitive RPM Theories
Facilitating Collusion Upstream or Downstream
Increase in Prices, Lifecycles and Product Favouritism
Foreclosure and Restriction of Entry Both Upstream and Downstream
Foreclosure as a Commitment Device in Protection of Monopoly Rents
Dampen or Soften Competition Both Upstream and Downstream
Pro-Competitive RPM Theories
Special Services and Free-riding
Quality Certification and Signalling
Image Theory: The Allure of Paying More
Demand Uncertainty and Inventories
Outlets and Distribution Density
Moral Hazard and Double Moral Hazard
Production of a Good when Manufacturers' Risks are Low
Contract Enforcement Mechanism and Quality Control
Loss Leader Selling
Less Efficient Dealer and/or Distributional Efficiency
Price Discrimination
Spatial Price Discrimination
Where imposing an RPM floor leads to a decrease in collusive behaviour
RPM with Optimal Delegation
New Market Entry or Product Launch
Pro-competitive models which rely on the purely vertical aspect of RPM
Conclusion: No Consensus among Economists on Impact of RPM
PART II EU HISTORICAL ORIGINS AND LEGAL STRUCTURE
Chapter 5 The Legal and Political Origins of RPM European Union
Abstract
European Union: Historical Origins & Legal Structure of RPM
Historical Background of EU Vertical Enforcement
Current Legal Structure of EU Vertical Enforcement
Block Exemptions and their role in vertical restraint enforcement
Article 101(3): a closer examination of the individual assessment and its role in vertical restraint enforcement
Chapter Conclusion: EU Historical Origins and Legal Structure
Chapter 6 The Legal Concepts of By-Object, By-Effect and Appreciability
Abstract
Introduction to the Distinction between By-Object and By-Effect
A Background on By-Object Restrictions: The Finer Details
Categorisation and Analysis of By-Object Restrictions: A Deeper Dive
By-Object Categorisation: Overview of Differences between the EC and Case Law Approaches
By-Object Categorisation: Approaches to Appreciability …