Resale Price Maintenance Guidance in Ireland: A Paradox?

In 2021 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, advanced the proposition that, in effect, minimum, fixed and, although it appears inadvertent, maximum resale price maintenance (RPM) are per se breaches of competition law. Such a position is inconsistent with the European Commission’s Vertical Block Exemption Regulation and Guidance, past CCPC decisional practice and the efficiency provisions of both EU and Irish competition law. Prior to the introduction of civil fines for breaches such as RPM, as part of the implementation of the ECN+ Directive in 2022, the CCPC should state whether it views minimum and fixed RPM as per se breaches of competition law and why; or as seems more likely, that given the hardcore characterisation of minimum and fixed RPM by the European Commission, the CCPC envisages it would be difficult but not impossible for the efficiency defence to be successfully employed to justify such forms of RPM. The agency also needs to clearly articulate its position on maximum RPM, which it also appears to treat – inappropriately – in the same way as minimum and fixed RPM.