Transcript Antitrust Issues in On-Line Retailing – In Search of Legal

Antitrust Issues in On-Line Retailing – In
Search of Legal Principles?
Frances Murphy, 13 December 2012
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Introductory Questions
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What are the legal principles?
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Have they crystallised?
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Or are they still evolving?
Introductory Questions
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Does the application of competition law differ according to whether
the retail arrangement is for sales via a physical store or an on-line
store?
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Ought it to differ?
Cases involving Retail MFNs
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Tobacco (OFT – overturned at CAT)
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Ebooks (DOJ, OFT then EC – commitments)
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Provision – Apple and Publisher – the price for the ebooks you publish
and sell over the Apple platform shall not be higher than the same ebook
sold by you over another platform
Hotels (OFT – on-going)
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Provision – tobacco manufacturer to retailer – you are free to set the
retail price of my cigarettes but the price for my cigarettes must not be
higher than the price you charge for my competitor’s cigarettes
Provision – on-line travel agent and hotel – the price you charge
over my platform for rooms at your hotel must not be higher than
the price charged on another platform
Cases involving Retail MFNs
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Hotel Booking Service (BKA)
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Airline Booking Systems (Private Action – USA)
US Airways -v- Sabre and Travelport
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Provision – Sabre to US Airways – USA obliged to provide Sabre with
“Full Content” including any lower price USA offers to any competing
airline booking system
Provision – Travelport to US Airways – USA obliged to provide
Travelport with fares at least as favourable as the fares offered by it to
competing airline booking systems
Amazon to Supplier Sellers (BKA)
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Provision – Hotel booking service to Hotel – the price you charge over
my platform for rooms at your hotel must not be higher than the price
charged on another platform
Provision – Amazon to sellers – vendors of merchandise over the
Amazon platform must charge no more for their products than they
charge for the products over another website (including over
the vendor's own website)
The cases give rise to a number of
questions including:
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Are retail MFNs and RPM provisions one and the same?
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Are wholesale MFNs and retail MFNs different?
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Is the analysis of these provisions the same regardless of whether
the sale is made by the internet or through a physical store?
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Do retail MFNs have pro- or anti-competitive effects?
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Are there efficiency arguments for retail MFNs?
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What if the platform provider is an agent – can a platform
provider be a genuine agent under the VABE?
Central tenet of the VABE:
if a provision is not explicitly prohibited it is permitted
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Apple – ebooks
Pearson
Penguin
Harper
Collins
Apple - ibooks
Consumers
Hachette
MacMillan
THANK YOU
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