EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

However, the author of this paper considers the above interpretation of MAPs as potentially problematic particularly for retail chains for which, in principle, the advertised price (e.g., in leaflets) is the same as the price at which the goods are eventually sold to customers in stores. A situation in which the advertised and actual prices differed would be unacceptable, particularly with regard to consumer protection rules. Thus, if suppliers could legally impose MAP policy on retail chains, retail chains would be forced by factual circumstances (not by the supplier) to sell at prices corresponding to MAPs. At the same time, retail chains could not afford to refuse to comply with MAP policies imposed by many large suppliers with significant market power. Therefore, the author of this paper is convinced that the wording of para. 174 of the Draft Vertical Guidelines should be amended in order (i) to clarify that MAPs are usually considered a form of RPM even without the supplier additionally influencing the price-setting, or preferably (ii) to take into account the situation in which the retailer has no choice but to resell at the advertised price in view of the factual circumstances (in particular consumer protection). 3.2 Safe Harbour for Dual Pricing under Certain Conditions Dual pricing is a practice where the supplier sets a higher wholesale price for a product intended to be resold by a distributor online than for the same product intended to be resold by the same (hybrid) distributor via a brick-and-mortar (offline) channel (Vertical Guidelines, para. 52(d); European Commission, 2017, paras 596–597). Under the current regime, dual pricing is considered a hardcore restriction of passive selling (Vertical Guidelines, para. 52(d)), i.e., a restriction on the distributor’s ability to respond to unsolicited demand from individual customers (Vertical Guidelines, para. 51). However, according to para. 64 of the Vertical Guidelines, dual pricing may, in exceptional circumstances, fulfil the conditions of Article 101(3) of the TFEU. Such circumstances may arise if a manufacturer agrees on dual pricing with its distributors, as sales to be made online lead to substantially higher costs for the manufacturer than sales in the offline channel, e.g., where online sales do not include home installations by the distributor (as opposed to offline sales) and therefore may lead to more customer complaints and warranty claims for the manufacturer. Distributors’ costs associated with online vs. offline sales are not considered. The European Commission is now proposing to relax the current strict rules and allow agreements containing dual pricing to benefit from the safe harbour in the Draft VBER (not only the possibility of the exemption under Article 101(3) of the TFEU) under certain conditions (beyond compliance with the rules on market share thresholds in Article 3 of the Draft VBER). The Draft Vertical

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