A Resale Price Maintenance Agreement
Producer pricing was weakened when large-scale retail, combined with the growth of strong distributor organizations, created conflicting interests in retail. Since marketing channels in highly industrialized countries are complex and overlapping, the setting and application by manufacturers of a single price, or even a minimum price, is a complex and arduous task, since there is no collective effort to enforce, limit the number of enterprises or state intervention. Since effective resale price controls lead to excessive capital and labour in distribution activities by eliminating price competition, such a programme logically requires a number of means to limit the number of undertakings. The classification that a certain type of conduct constitutes in itself an infringement of cartels means that it falls into the rare category of agreements which, according to anti-cartel rules, have little or no competitive value in almost all cases. In practice, a plaintiff who per se brings an antitrust action has a much easier path to victory. Such an applicant is not required to demonstrate anti-competitive harm (which often includes complex market analyses and evidence of market power) and defendants are not in a position to respond with commercial or competitive justifications for their conduct. The types of claims that in themselves constitute cartel infringements are horizontal price cartels (i.e. price cartels between competitors or between competitors), market allocation among competitors, supply manipulation and certain forms of boycott and group engagement agreements. While any proposed resale price fixing agreement must be evaluated on a case-by-case basis and from one market to another, the following factors will be decisive in determining whether a particular price agreement will be likely to be concluded on the basis of an analysis of the reason.
In any event, the courts will now look at the impact of these agreements on the market. Under common sense rules, courts assess and assess the anti-competitive and anti-competitive effects of an attacked agreement in order to determine whether it constitutes an inappropriate restriction on trade. This means considering whether it is likely to increase or decrease the number of competitors, brands, customer decisions and, ultimately, prices. Some producers also defend the system of resale prices by saying that they guarantee fair returns for both producers and resellers, and that governments do not have the right to intervene without a very good reason in the freedom to conclude contracts. According to a press release from the Czech Competition Authority (“Authority”) of 3 September 2020, the Authority imposed an induction fine of CZK 7,687,000 on gardening equipment supplier V-GARDEN for maintaining resale prices. The Authority indicated that during the period of (…) On 28 June 2007, the Supreme Court annulled Dr. Miles, which was discussed above, and found that vertical price restraints, such as minimum pricing, are not illegal in themselves, but must be judged on the basis of the “rule of reason”. Leegin Creative Leather Products, Inc. vs. PSKS, Inc., 551 U.P.
877 (2007). This marked a dramatic shift in the way lawyers and law enforcement authorities deal with the legality of contractual minimum prices and essentially restored the reintroduction of resale pricing in the United States in most (but not all) business situations. In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd  AC 847, a contract law case in England, tyre manufacturer Dunlop had signed an agreement with a dealer to obtain £5 per tyre as lump sum damages if the product was sold below list price (with the exception of car dealers). The House of Lords decided that Dunlop could not enforce the agreement. However, this had nothing to do with the legality of resale pricing clauses, which was out of the question at the time. .