EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

and the end user agree on certain commercial conditions, but where ultimately the contract is executed by an intermediary (this may concern, e.g., logistics). In a situation in which the intermediary is not acting as an agent (the Draft Vertical Guidelines, paras 40–43), the fixing of the resale price in an agreement between the supplier and the buyer as an intermediary that executes a prior agreement between the supplier and a particular end user, does not constitute RPM, provided that the end user has waived its right to choose the undertaking (the intermediary) that should execute the agreement (the Draft Vertical Guidelines, para. 178). Setting clear rules on the issue of fulfilment contracts is clearly welcome. However, the author considers them probably set too strictly. The fact that the end user must waive its right to choose the undertaking to execute the contract may not be of such importance. The price has already been agreed in the contract between the supplier and the end user and is therefore no longer a competition parameter. In such a situation, the end user should have the possibility to choose among the undertakings which execute the contract, taking into account other factors such as Although price monitoring increases price transparency in the market and makes RPM strategies more efficient, it does not constitute RPM as such. Thus, the Draft Vertical Guidelines allow manufacturers to effectively monitor resale prices in their distribution networks and to intervene quickly in case the price falls. Similarly, retailers can monitor the prices of their competitors and notify price falls to the manufacturer, together with a request for action against those price falls (the Draft Vertical Guidelines, para. 176). The Draft Vertical Guidelines explicitly confirm that although price monitoring may give rise to suspicions of competition law infringements – particularly the one using special software – in itself it is fully compliant with competition law. 3.1.2Minimum Advertised Prices (“MAPs”) Pursuant to para. 174 of the Draft Vertical Guidelines, obligations of the retailers to adhere to the MAPs are considered hardcore restrictions if the supplier enforces them by sanctions to retailers ultimately selling below the respective MAPs, requiring them not to offer discounts or preventing them from communicating that the final prices could differ from the relevant MAPs. Thus, it seems that if a retailer is ultimately free to sell at prices below MAPs, it is not a hardcore restriction and therefore can benefit from the block exemption in the Draft VBER. This is an interesting shift from the recent case-law – mainly the one of the British Competition Authority prior to Brexit – which considered MAPs to be a form of RPM (Krumlová, D., 2019, p. 37 et seq. ). the quality of service. 3.1.1 Price Monitoring

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