Antitrust Issues in On-Line Retailing – In Search of Legal Principles? Frances Murphy, 13 December

Introductory Questions What are the legal principles? Have they crystallised? Or are they still evolving?

Introductory Questions 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? Ought it to differ?

Cases involving Retail MFNs Tobacco (OFT – overturned at CAT) 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 competitors cigarettes Ebooks (DOJ, OFT then EC – commitments) 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) 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 Hotel Booking Service (BKA) 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 Airline Booking Systems (Private Action – USA) US Airways -v- Sabre and Travelport 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) 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: Are retail MFNs and RPM provisions one and the same? Are wholesale MFNs and retail MFNs different? Is the analysis of these provisions the same regardless of whether the sale is made by the internet or through a physical store? Do retail MFNs have pro- or anti-competitive effects? Are there efficiency arguments for retail MFNs? 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

PenguinPearsonMacMillan Harper Collins Hachette Apple - ibooks Consumers Apple – ebooks

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