In a digital age, the expansion of e-commerce and increase in online distribution creates new challenges for antitrust authorities – and with that, new challenges for cross-border businesses trying to navigate the international enforcement landscape. This article illustrates parallels and contrasts between enforcement by European competition authorities and the US antitrust agencies, in order to provide a practical guide for US companies looking to expand their distribution in Europe and who may therefore need to adapt their business models to avoid European enforcement challenges. The article focuses on key enforcement trends in Europe, including: (a) potential liability issues raised by the “meeting of minds” by automatic pricing systems; (b) the divergence in approach by national competition authorities as regards restrictions in online sales, in particular following the Court of Justice’s Coty decision; (c) restrictions on online advertising following the European Commission’s decision to fine Guess for preventing its retailers from bidding on Google AdWords; and (d) the breaking of the European Commission’s 15-year enforcement hiatus regarding resale price maintenance, through the fining of four electronics manufacturers in 2018. In light of the European Commission’s current review of its vertical agreement guidance, the article also proposes how some of these trends may continue to develop in future in order that US companies can build future-proof distribution systems.
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