Most favoured nation clauses in need of an effects-based approachClick here to read the full article online
In this article, we discuss some of the key economic aspects that are relevant for the assessment of these clauses, and should be taken into account in developing the revised guidelines in relation to MFNs and more broadly, in relation to free-riding justifications. We show why it is critical that MFN clauses (both wide and narrow) benefit from the block exemption, and importantly, are assessed using an effects-based approach. In doing so, we comment on the latest empirical analyses of MFNs conducted in the support study. We also discuss the economic analysis of free-riding and posit that such analysis needs to be undertaken within the effects-based analysis of MFNs and other agreements such as selective distribution systems.