| Abstract [eng] |
EU courts and the Commission hold that all agreements which restrict parallel trade are per se infringement. This kind of attitude was formulated subject to the implementation of the ultimate objective of the EU – single market objective. But the receding significance of the single market objective and advanced relationship between the single market objective and the final consumer objective determinated the change of this attitude. The decision of the First Instance Court in GlaxoSmithKline case was the first and evident precedent in formulation of the new attitude. Despite the court’s statement that not all the agreements which restrict parallel trade have as their object the restriction of competition, in the author’s point of view the court might have explicated the concept of the restriction of competition. The author considers that the attitude to the restrictions of parallel trade should be changed. The agreements restricting parallel trade in the innovative sectors should not be regarded as per se infringements. Whereas the agreements restricting parallel trade which are not concluded in the innovative sector should be regarded as per se infringements. The innovative sectors should be determined subject to the rate of the expenses which the undertaking sustains to make innovative decisions. For instance if the expenses for research and development are 30 or even more percent of the total product, the sector might be determined as innovative. Besides these conclusions, it is also important to clarify the conception of the restriction of the competition. The equivocal decisions of the EU courts raised the confusion regarding the precise concept of the restriction of competition and it is still not clear if the rule of reason should be applied in the Article 81(1). But the historical situation, the linguistic and systematic analysis, the identification of the competition law objectives and the determination of the Article’s 81 functions denied the necessity to apply the rule of reason. The concept of the restriction of competition must be determined subject to the ultimate objective of the competition law – the final consumer surplus. |
