EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Apublic consultationon the publisheddocumentswas underway until 17September 2021 (European Commission [online], 2022b).The individual contributions as well as their summary have been published (European Commission [online], 2022a). Based on the evidence gathered during the impact assessment phase, including stakeholder comments on the Draft VBER and the Draft Vertical Guidelines, the European Commission will finalise the documents so that they can enter into force on 1 June 2022 (European Commission [online], 2021b). 2. Problem Formulation and Methodology In this paper, the author describes, and analyses selected amendments to the current regime concerning vertical agreements as proposed in the Draft VBER and the Draft Vertical Guidelines. The aim is to highlight the most significant differences from the current regime and to identify potential shortcomings. Since the author’s PhD research focuses on vertical restraints in the e-commerce sector, this paper will focus particularly on key amendments of the current EU distribution law related to the online economy. Indeed, unless there is a significant change in the European Commission’s approach following the carried-out consultation process, the most essential amendments of the regime will be made in this area. This is where the European Commission is trying to catch up the most with market developments. 3.1 Resale Price Maintenance (“RPM”) Still a Hardcore Restriction Under Article 4(a) of the Draft VBER, RPM remains a hardcore restriction. However, compared to the current Vertical Guidelines, the European Commission puts more emphasis on the fact that although RPM is a type of agreement which usually has the object of restricting competition under settled case-law, it is not per se prohibited. Indeed, even typical by object agreements such as RPM may benefit from the exemption under Article 101(3) of the Treaty on the Functioning of the European Union (European Union, 2012; the “TFEU”), if it has positive effects in a specific case. This may be particularly relevant in situations where – in the absence of a less restrictive means – RPM can be an effective tool (i) to incentivise distributors to promote a new product at launch (for a limited period), (ii) to organize a coordinated short-term low-price campaign (of 2 to 6 weeks in most cases), particularly, but not exclusively, in a franchise system, or (iii) to prevent free riding at the distribution level (the Draft Vertical Guidelines, para. 180 et seq. ). In contrast to the current Vertical Guidelines, the Draft Vertical Guidelines also deal with socalled fulfilment contracts. These are contracts where the supplier 3. Analysis of the Most Significant Amendments

571