One way to distinguish between horizontal and vertical cooperation between the ECJ is to examine the case law. Thus, in Consten and Grundig[6], the ECJ did not follow the advice of the Advocate General (GA) and found that horizontal and vertical restrictions are contained in Article 101, paragraph 1. In particular, the GA argued that Article 101 of the EUTF did not apply to vertical agreements between one producer and its distributor, as they are not competitors to the other. However, the ECJ did not agree with the GA, on the grounds that the wording of Article 101 does not distinguish between horizontal and vertical agreements. Instead, the Tribunal found that the section applies to all agreements that could distort competition in the common market. In addition, it should be noted that the ECJ generally follows the ag`s advice and that the ECJ takes a different approach from that of the GA, as shown in the court`s firm decision, that the language of the contract does not suggest a distinction between horizontal and vertical agreements. As a result, the U.S. SC is more distinguished from horizontal and vertical cooperation from the ECJ`s distinction when horizontal agreements are more easily condemned, since the vertical regime is generally self-motivated. The ECJ makes less of a distinction between horizontal and vertical cooperation than that of the United States.
This is probably because the ECJ is influenced by strong principles of market integration. (2) Rule-based offences – a set of circumstances that raise the question of whether cooperation promotes or suppresses competition in the market (i.e. vertical restrictions on non-prices, for example. B when a dealer can sell). The table below shows a specific text in the opinions of European jurisprudence and the GA on the differences between the horizontal and vertical agreement. Another way to demonstrate that the ECJ does not make an important distinction between horizontal and vertical cooperation is that the Commission focuses on the economic benefits of vertical agreements, but that the Court of Justice does not examine market effects in all cases. In concrete terms, in the guidelines on vertical agreements, the Commission states that “certain types of vertical agreements can improve economic efficiency within a production or distribution chain … they can lead to lower transaction and distribution costs for the parties and to the optimization of their distribution and investment levels. [This] predominates of possible anti-competitive effects due to restrictions…
[7] However, the ECJ does not consider the effects of competition restrictions when there is an object. In Grunding, the ECJ said: “… for the purposes of the application of Article 101, paragraph 1, the concrete effects of an agreement are not taken into account as soon as it appears to be aimed at preventing, limiting or falsifying competition.” [8] Competition law in the United States is defined primarily by Section 1 of the Sherman Act[9], which prohibits any agreement that disproportionately restricts competition and affects interstate trade. In the United States, infringements are mainly divided into two categories: the analysis below is based on 14 European competition law cases in the area of concerted practices. In most cases, this is horizontal cooperation as opposed to vertical cooperation. Some of the most common horizontal cooperation agreements on the market include information exchange, joint procurement agreements and research and development agreements. [4] On the other hand, some of the most common vertical cooperations include restrictions on distribution, franchising and resale prices. [5] The following content examines the differences between horizontal and vertical cooperation in the field of EU competition law.
To better understand the approach of the European Court of Justice (ECJ), the analysis also compares the differences between the horizontal and vertical cooperation of the United States Supreme Court (US SC).