Few alternatives. On first reflection it could be said that the Reform does not implement very innovative changes. Vertical distribution agreements will also in the future be assessed under Article 81, where the majority of agreements will infringe Article 81(1) and thus require some form of exemption from the Commission. One possible alternative, given the far-reaching development of Article 81(1) in the Community Courts, would be to abolish Article 81(3) and apply an all encompassing Rule of Reason under the first part of the Article. 120 Commission Following-up Paper on vertical Restraints pp. 4, 6; Commission Guidelines on Vertical Restraints para. 5-7. Nevertheless, this option would involve complicated treaty changes. It is hard to see how the Commission would manage to act within reasonable time limits. Additionally, this alternative would only really concern a distinct part of the competition law. An overall revision of the whole European competition policy is required if treaty changes are to be made.121 A less drastic option, still under Article 81, would be to take further steps in the decentralisation process by allowing Member States to grant exemptions under Article 81(3) for vertical distribution agreements. The modification does not imply treaty changes, and could easily be applied in relation to a well-defined group of agreements.122 Yet, before this step is taken, a coherent application of the exemption system must be achieved. Otherwise the same facts would lead to different decisions in different jurisdictions, which would naturally lead to legal uncertainty. A non-coherent application of the exemption system would also create an incentive for undertakings to forum shopping in the Community, effectively creating increased enforcement costs. It is questionable whether Member States are ready to take the full responsibility of applying Article 81(3).123 This question is of special relevance for vertical distribution agreements that constitute a complicated field in the competition law. Moreover, as the Reform changes the old system of assessing vertical distribution agreements, it is hard for Member State Authorities to find clear guidelines from the Commission’s old practices in how to apply the exemption system in relation to vertical distribution. The building-up of a new exemption policy towards vertical restraints requires the Commission to keep the exclusive jurisdiction to grant exemptions.
