ABSTRACT
The focus of the discussion so far has been on the substantive aspects of the law. Substantial analysis has been provided on restrictive agreements between firms – particularly those concerning price fixing, concerted practices, permissible horizontal restraints and vertical resale restrictions. The approach of the law in these areas, both in the United States and the European Union, has been largely satisfactory, and underpinned with sound economics. What is now required is the realization that vertical agreements can be rational measures undertaken to maximize profits under certain market conditions, and that price fixing arrangements within vertical spheres need not be regarded as illegal from inception. In addition, the notion of concerted practice must remain firmly tied to an examination of the conduct of the parties on the market – with the implication that any ambiguous behaviour, or any behaviour that cannot be aligned with the economic reality or conditions on the market, must be eliminated from assessments. In the same regard, the concept of agreement must reflect the meeting of minds between competitors.
