Rule of Reason

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The Rule of Reason is an American antitrust doctrine. At its core is a trade-off between the possible positive and negative effects of a measure that restricts competition. If its advantages outweigh its advantages, it should not be prohibited. So it is not a per-se prohibition, but a rule or a priority of reason .

Development in the United States

In American antitrust law, the prohibition of anti-competitive measures in the Sherman Act was initially interpreted very extensively: In US v. Trans-Missouri Freight Association postulated the Supreme Court that all competition agreements are prohibited and that without any discretion. However, this decision - made with only a narrow majority - did not last. In the Basic Standard Oil Co. of New Jersey v. In the US ruling, the court made it clear that there was a margin of appreciation: simply forbidding any competitive agreement would be impracticable and ultimately counterproductive. Restrictions of competition can also be necessary in order to make contracts that are in themselves antitrust law-neutral (e.g.Non-compete obligations ). This principle remains consistent case law in the United States to this day. A per se ban is only intended for “ hard core ” restrictions, i.e. price agreements or market splits.

Rule of reason in European antitrust law

It has not been conclusively clarified whether the Rule of Reason also exists in European competition law. Such would then be seen in further, “unwritten” exceptions beyond the “written” exceptions to the ban on cartels (Art. 101 (1) TFEU) in Art. 101 (3) and 106 (2) TFEU. While the Court of First Instance and the Commission have spoken out against a rule of reason, as this is incompatible with the system of Art. 81 EC (now: Art. 101 TFEU), the ECJ seems at least in Wouters et al. / Algemene Raad van de Nederlandse Orde van Advocaten to have applied the Rule of Reason.

German law

German law also knows a kind of rule of reason: the so-called immanence theory . These cases are unwritten exceptions to Section 1 GWB. Just like in European law, there is a system of legal exceptions in German antitrust law with Section 2 GWB. In contrast to American law, a restriction of the facts of the case would not be “necessary” per se. Nonetheless, the distinction between factual restriction and legal exception is also recognized in the case law of the BGH. If an agreement is not a factual act, the main advantage for the companies involved is that it no longer matters whether the GMOs apply according to Section 2 (2) GWB. The facts of Section 1 GWB primarily do not include the ancillary agreements required for contracts that are neutral in terms of antitrust law.

Individual evidence

  1. ↑ 15 USC § 1 : " Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal ."
  2. ↑ 166 US 290 (1897) .
  3. ↑ p. 341: “ The conclusion which we have drawn from the examination above made into the question before us is that the antitrust act applies to railroads, and that it renders illegal all agreements which are in restraint of trade or commerce [... ] ".
  4. ↑ 211 US 1 (1911) .
  5. ↑ S. 60: " Thus, not specifying but indubitably contemplating and requiring a standard, it follows that it was intended that the standard of reason [...] was intended to be the measure used for the purpose of determining whether, in a given case, a particular act had or had not brought about the wrong against which the statute provided. "
  6. ^ Partly relativized in Continental Television v. GTE Sylvania , 433 US 36 (1977) (vertical agreements are to be considered under the rule of reason); State Oil v. Khan , 522 US 3 (1997) (maximum price agreements fall under the rule of reason); Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 127 S. Ct. 2705 ​​(2007) (no per se prohibition for minimum price agreements).
  7. ^ Dauses / Emmerich, EU commercial law. § 2. Art. 101 TFEU marg. 54.
  8. ↑ EuG judgment of October 23, 2003 - Case T-65/98 - Slg. 2003, II-4643 - Van den Bergh Foods / Komm. as well as guidelines on the application of Art. 81 Para. 3 EC Treaty, ABl. 2004 C 101/8.
  9. ^ Judgment of February 19, 2002 - Case C-309/99 - ECR 2002, I-01577.
  10. ^ On the whole: Loewenheim / Meessen / Riesenkampff cartel law. 2nd edition of the EC Treaty, Art. 81 Para. 1 Rn. 135.
  11. ↑ See BGH WuW / E 1119, 1123 - Verbundnetz II.