(Previous installments here)
In conclusion, and based on the above reflections, some
tentative answers to the central question of this serial: What is really new about retail MFN clauses?
For years already, competition/antitrust circles have discussed
whether anticompetitive motives and efficiency justifications underlying the
adoption of vertical restraints in the off-line world equally applied to
on-line sales. Thus, for instance, most participants in an OECD roundtable on vertical
restraints for on-line sales agreed that “a new economic and regulatory
framework was not needed to assess the competitive implications of vertical
restraints” in the Internet economy. After all, as recently argued by Alexander
Italiener, the EC Director-General for Competition, some of the actual issues emerging
from e-commerce, such as how to deal with on-line resellers accused of
free-riding on others’ promotional efforts, are hardly a novelty. Differences
in scale and speed notwithstanding, mail order companies in the pre-Internet
time were accused of doing broadly the same.
With regard specifically to retail MFN clauses as used by multi-sided platforms, before asking questions
about the suitability of our current economic and regulatory framework in order
assess them, it should be noted that this type of vertical restraint might raise some "original" competition concerns.
(To be continued)
