EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The evaluation confirmed that the VBER and the Vertical Guidelines are effective tools for undertakings to facilitate the self-assessment of vertical agreements and generally meet the objective of avoiding both false positives and false negatives. However, the evaluation identified several shortcomings (European Commission, 2020). As the VBER entered into force on 1 June 2010, more than 10 years have passed since the last EU distribution law reform. Since then, the market has changed significantly, particularly because of the growing importance of e-commerce and associated online marketplaces, search engines, and price comparison tools. The European Commission found that “ today’s customer journey is a fluid omni-channel process ” (European Commission, 2020, p. 36), whereby customers switch easily within the online channel, between online and brick-and-mortar distributors, within the brick-and-mortar channel, and between mono-brand and multi-brand retailers. Businesses are responding in different ways. They are looking for solutions to limit the free-riding problem, they are increasingly using selective distribution systems – whereas the use of exclusive distribution is rather on the decline today –, and within these they are trying to set appropriate criteria for the online channel, and/or they are trying to create a coherent omni-channel environment for their customers (European Commission, 2020, p. 30 et seq. ). In this context, the evaluation process has shown that some provisions of the VBER and the Vertical Guidelines – especially in relation to the online environment – lack clarity, are difficult to apply and no longer reflect current market developments. Some new types of vertical restraints – such as retail price parity clauses, restrictions on sales through online marketplaces, or online advertising – are often not addressed, or are addressed only partially in the current VBER and/ or Vertical Guidelines. This not only makes self-assessment of vertical restraints by businesses more difficult, but also creates room for divergent application of EU distribution law by national competition authorities and national courts (European Commission, 2020, p. 51 et seq. ). For that matter, the situation of divergent application of competition rules in relation to vertical restraints has already arisen in the past, most visibly in the context of the assessment of the narrow retail parity clauses (European Commission, 2020, p. 184; Krumlová, D., 2019, p. 65 et seq. ). Thus, the evaluation revealed that there is a continued need for the VBER and the Vertical Guidelines. However, the gaps need to be filled and more clarity needs to be brought to the EU distribution law (European Commission, 2020). On 9 July 2021, following a detailed impact assessment process (European Commission [online], 2022a), the European Commission presented its long awaited drafts of the revised VBER (European Commission, 2021a; the “Draft VBER”) and the Vertical Guidelines (European Commission, 2021b; the “Draft Vertical Guidelines”) to replace the current regime.

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