Rule of Reason
The Rule of Reason is an American antitrust doctrine. Its core is a trade-off between the possible positive and negative effects of a restrictive measure. Preponderance of their benefits, so it's not to be banned. It is not useful to a per-se prohibition, but a rule or a primacy of reason.
Development in the United States
In American antitrust law, the prohibition of restrictive measures in the Sherman Act was initially extremely broad: In U.S. v. Trans - Missouri Freight Association, the Supreme Court postulated that all anti-competitive agreements are prohibited and without any discretion. This - handed down with only a narrow majority - but decision did not last. In the basic Standard Oil Co. of New Jersey v. U.S. judgment, the Court made it clear that very probably a margin of discretion exists: Utterly prohibit any agreement on competition, was impracticable, and ultimately counterproductive. Restrictions may be necessary namely also to - se antitrust neutral - to make contracts at all feasible (eg competition clauses ). This principle has remained constant jurisprudence in the United States. A per-se prohibition is only intended for hard-core restrictions, ie price fixing or market sharing.
Rule of Reason in European Competition Law
Whether there is the Rule of Reason in European competition law, is not fully understood. Such would be in another " unwritten" to see exceptions beyond the " written " exceptions from the prohibition (Article 101 paragraph 1 TFEU) in Article 101, paragraph 3 and 106 para 2 TFEU. While the Court of First Instance and the Commission against a Rule of Reason have made, because these with the scheme of Article 81 EC (now Article 101 TFEU ) is not compatible, the ECJ seems at least in Wouters and Others / Algemene Raad van de Nederlandse Orde van Advocaten to have the rule of reason applied.
German law
The German law recognizes a kind of Rule of Reason: The so-called Immanenztheorie. It is in these cases it is unwritten exceptions of § 1 GWB. Just as in European law, there is in the German antitrust law with § 2 of the ARC, a system of legal exceptions. A statement of facts restriction would be - in contrast to American law - in itself is not "necessary". Nevertheless, the distinction between facts and legal restriction exception is also recognized in the case law of the BGH. If an agreement is not already factual terms, this has the particular advantage for those involved companies that it is no longer relevant whether the GVOen grab 2 of the ARC pursuant to § 2 para. From the elements of § 1 GWB is primarily necessary for antitrust neutral contracts ancillary agreements are not recognized.