Introduction

See e.g. W. Adams, Rule of Reason: Workable Competition of Workable Monopoly, 63 Yale L.J. 348 (1954);Google Scholar

R.H. Bork, The Rule of Reason and the Per se Concept: Price Fixing and Market Division, 74 Yale L. J. 775 (1965) and 75 Yale L. J. 375 (1965);Google Scholar

Ancillary Restraints and the Sherman Act, 15 Aba Antitrust Section 211 (1959);Google Scholar

John T. Chadwell, Competition and Section I of the Sherman Act - Instant Antitrust or Long-run Policy?, 27 Aba Antitrust Section, 60 (1965);Google Scholar

Handler, A Study of the Construction and Enforcement of the Federal Antitrust Laws, Tnec Monograph n° 38, 3–9 (1941); id., The Judicial Architects of the Rule of Reason in Antitrust IN Perspective (1957);Google Scholar

L. Loevinger, The Rule of Reason in Antitrust Law, 50 VA L. Rev. 23 (1964), Montague, Per Se Illegality and the Rule of Reason, 12 Aba Antitrust SecrIoN 69 (1958); Oppenheim, Federal Antitrust Policy: Guideposts to a Revised National Antitrust Policy, 50 MIcH. L. Rev. 1139 (1951–1952); id. Selected Antitrust Developments in the Courts and Federal Trade Commission during Past Year, 15 Aba Antitrust Section, 37–42 (1959); id., Antitrust Booms and Boomerang, 9 Antitrust Bull. 641 (1964);Google Scholar

Peppin, Price-Fixing Agreement under the Sherman Antitrust Law, 28 Calif L. Rev. 297, 677 (1940);Google Scholar

James A. Rahl, Symposium on “ Price Competition and Antitrust Policy “, 57 Nw. U. L. Rev. 137 (1962); id., Per Se Rules and Boycotts under the Sherman Act: Some Reflections on the Klor’s Case, 45 VA. L. Rev. 1165 (1959);Google Scholar

L. Schwartz, The Schwartz Dissent, 1 Antitrust Bull. 37 (1955–56);Google Scholar

Smith, Berge and Burns, Proposals for Extended Application of the Rule of Reason, U. of Mich. Law School Summer Institute, Federal Antitrust Law, 231–262 (1953);Google Scholar

Stocking, Rule of Reason, Workable Competition and Monopoly, 64 Yale L. J. 1107 (1955); id., The Rule of Reason, Workable Competition and the Legality of Trade Associations Activities, 21 U. Chi. L. Rev. 527 (1954);Google Scholar

Taft, The Antitrust Act And The Supreme Court (1914); J. Van Cise, The Future of Per se in Antitrust Law, 50 VA. L. Rev. 1165 (1964);Google Scholar

Wiley, The Per Se Illegality of Price-Fixing: Sans Power, Purpose or Effect, 19 U. Chi. L. Rev. 837 (1952).Google Scholar

See 1961 B Kart A Report 62 [The German Federal Cartel Office publishes yearly reports entitled Bericht Des Bundeskartellamtes Ober Seine TÄTigkeit IM Jahre… Sowie Uber Die Lage Und Entwicklung Auf Seinem Aufgabengebiet. They will be hereinafter cited as B Kart A Report preceded by the applicable year]; Deringer, WuW/Ewg - Wettbewersrecht, in Wirtschaft Und Wettbewerb (hereinafter cited as WuW) 866 (1962). Kurt Market, Book Review, WuW 343 (1963), speaking of some American decisions which held lawful the statistical activity of certain trade associations (price information agreements), wrote that they could only be instructive in a comparative perspective if one would know whether these agreements were sustained because no restraint of competition was found or because the Rule of Reason was applied. In his mind, it seems that the Rule of Reason opens the door to an economic justification of restrictive agreements. Contra, Wolf, Zum Kartellrecht der Ewg, WuW 645 (1962): this author advocates the existence of a Rule of Reason under Article 85(1) of the Rome Treaty, but his conception of the American principle is no more accurate than that of the other writers.Google Scholar

See Oberdorfer, Gleiss And Hirsch, Common Market Cartel Law, 25–26 (1963).Google Scholar

Kurt Markert, Alleinvertriebsvertriige und Antitrustrecht WuW 307 (1963) considers the exculpatory provision of Art. 85 of the Rome Treaty as a kind of codified Rule of Reason. See also, Gunther, Europäische und nationale Wettbewerbspolitik in Wirtschaftsordnung Und Rechtsordnung, Festschrift Fur Franz BÖHM (1965) at 294 and footnote (53).Google Scholar

See the statement of Loevinger in Antitrust Developments IN The European Common Maruet, Hearing Before the Sucommittee on Antitrust and Monopoly of the Committee on the Judiciary, 88th Cong., 1st Session, pursuant to S. Res. 56, Part 1, 66 (1963). In the view of Fulda [The First Antitrust Decisions of the Commission of the Eec, 65 Comm. L. Rev. 643, 644 (1965)1, “Article 85(3) seems to avoid splitting the field of the law into the two categories of per se violations and activities subject to,a ‘rule of reason’. It subjects all restrictive transactions to a single codified ‘rule of reason’ which may prescribe more precise standards than are available in American law for accepting ’business purposes’ as a justification, or for weighing the advantages and disadvantages of competition versus restriction. “Google Scholar

Handler [A Study of the Construction and Enforcement of the Federal Antitrust Laws, Tnec Monograph n° 38, 8 (1941)] noted “a tendency to regard the rule of reason as opening the door to the validation of any scheme or device for the curtailment of competition which may be justified on grounds of business expediency. Reasonable in this context means rational, and if an arrangement is not irrational, having regard for the circumstances of its formation and operation, it should be free from censure “. But Handler added that “though occasional official utterances and isolated passages in judicial opinions may point in that direction, the decisions of the Supreme Court in the past 30 years, viewed in their entirety, clearly reject this construction of the rule of reason “.Google Scholar

See for instance the British Restrictive Trade Practices Act of 1956; the art. 59bis and 59ter of the French Price Ordinance na 45–1483 of June 30, 1945; art. 65 of the Ecsc Treaty. These laws are reproduced in Organisation For European Economic Cooperation (Oeec), Guide TO Legislation ON Restrictive Business Practices (1960).Google Scholar

Literally translated, Act against restraints of competition, enacted July 27, 1957, hereinafter referred to as the German anticartel law.Google Scholar

See Oppenheim, Federal Antitrust Legislation: Guideposts to a Revised National Antitrust Policy, 50 Mich. L. Rev. 1149 (1951–1952).Google Scholar

Grundig-Consten v. Eec Commission, case no. 56/65, June 30, 1966, 2 Cch ComeoN Market Reporter par. 8046; Société Technique Minière v. Maschinenbau Ulm GmbH, case no. 56/65, June 30, 1966, 2 Cch Common Market Reporter par. 8047; Italy v. Eec Council and Eec Commission, case no. 32/65, July 13, 1966, 2 Cch Common Market Reporter par. 8048. See my discussion of these cases, infra chapter Iii at 155. 183.Google Scholar

The best example is the Grosfillex case where the Commission granted a negative clearance. See decision of the Eec Commission of March 11, 1964, Official Journal of the European Communities, 915 (1964).Unofficial English translation in 3 Common Market Law Reports 237 (1964). See my discussion of this case, infra chapter Iii at 140–141.Google Scholar

In Blondel, Hummel-Isbecque and Jallate, the Commission exempted three exclusive franchise agreements pursuant to Article 85(3). However, its approach in regard to Article 85(1) and to the question of restraint of trade is a very mechanical one. For references and discussion of these cases, see infra chapter Iii at 146–152.Google Scholar

and 1 Cch Common Market Reporter par. 2697; Regulation no. 153 Supplementing and Modifying Regulation no. 27 of May, 1962, issued by the Eec Commission December 21, _ 1962, Official Journal of the European Communities„ 2918 (1962) and 1 Cch Common Market Reporter par. 2694.Google Scholar

Regulation no. 19/65, Application of article 85(3) of the Treaty to Groups of Agreements and Concerted Practices, issued by the Council, March 2, 1965, Official Journal of the European Communities, 533 (1965) and 1 Cch Common Market Reporter par. 2725; the constitutionality of this regulation was upheld by the European Court of Justice in the case no. 32/65, Italy v. Eec Council and Eec Commission, July 13, 1966, 2 Cch Common Market Reporter par. 8048. See also the Proposed Regulation on the Application of article 85(3) of the Treaty to Certain Groups of Bilateral Exclusive Dealing Agreements and Concerted Practices, Official Journal of the European Communities, 2863 (1966) and 2 Cch Common Market Reporter par. 9125. For a discussion of these regulations and of the Italian case, see infra chapter Iii at 173–182.Google Scholar

See my analysis of these three cases infra chapter Iii at 156–173.Google Scholar

For an excellent historical survey of the German law in the field of cartels, see Kaufmann, Rautmann ET AL. Kommentar Zum Gesetz Gegen WettbewerbsbeschrÄNkungen, hereinafter referred to as Frankfurter Kommentar, Introduction, Part B. See also e.g. No Schwartz, Antitrust Legislation and Policy in Germany - A Comparative Study, 105 U. PA. L. Rev. 617 (1957).Google Scholar

The judicial history of cartels in Germany may be traced to the decision of the Reichsgericht in 1897 in the B. v. den Sachsischen Holzstaff-FabrikrantenVerband case (vi. Zivilsenat, Febr. 4, 1897, 38 Rgz 155). Facing a choice between freedom of trade and freedom of contract, the Reichsgericht gave priority to the latter.Google Scholar

In 1923 an Ordinance against Abuse of Economic Power was enacted which provided for a mere control of cartels (as opposed to a prohibition) and empowered a special Kartellgericht to step in against abuses. The best textbooks on the German cartel law of that period are- Callman, Das Deutsche Kartellrecht (1934) and Ysay-T’Schierschky, Kartellverordnung, Verordnung Gegen Missbrauch Wirschaftlicher Machtstellungen (1930).Google Scholar

Under the Nazis, cartels “ became a vehicle of an administration — planned economy “. Schwartz, op. cit. at 641. This found its expression in the Law on Establishment of Compulsory Cartels.Google Scholar

of the Potsdam Agreement contained a provision relating to the decartelization and deconcentration of the German Economy. The three Western powers separately enacted military government decartelization laws in their respective zones of occupation. At that time, only America had a strong antitrust tradition.Google Scholar

See the cases decided by the German Federal Supreme Court (Bundesgerichtshof hereinafter cited as Bgh) referred to in Baumbach-Hefermehl, Wettbewers- Und Warenzeichenrecht, 1212 (1960).Google Scholar

The adoption by the Eec Council of the Regulation no. 17 implementing Art. 85 and 86 of the Rome Treaty was described as the triumph of the German theories. See Françon, Les Ententes et les Monopoles selon le Traité de Rome, Premier Règlement d’Application des Art. 85 et 86 in, 89 Journal DU Droit International (Clunet) 400 (1962).Google Scholar