EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

provide businesses with a sufficient legal certainty. The assessment will require the assistance of lawyers, which can be particularly challenging for SMEs. Otherwise, it will lead to significant competition law risks. Furthermore, there is also a risk of diverging interpretations of this issue by national competition

authorities and/or national courts. 3.3 Online Sales Restrictions

Having in mind the recent EU and national case-law, in particular, Coty Germany, ASICS, and Valve (European Commission [online], 2021a), the Draft VBER and the Draft Vertical Guidelines clarify a number of restrictions related to online sales. The Draft VBER more precisely defines active and passive sales in the context of online selling. Under Article 1(1)(n) of the Draft VBER, a restriction that has as its object to prevent the buyers or their customers from effectively using the internet for the purposes of selling their goods or services online or from effectively using one or more online advertising channels is a ‘restriction of active or passive sales’ which has as its object to restrict (i) the territory into which or (ii) the customer group to whom the buyers may sell the contract goods or services, or (iii) active or passive sales to end users by members of the selective distribution system operating at the retail level of trade. Thus, certain restrictions of selling or advertising online benefit from the safe harbour in the VBER if they do not prevent the distributor from effectively using the internet for the purposes of selling. The European Commission is therefore taking a relatively flexible approach whereby whether a particular restriction on online sales is block exempted or considered a hardcore restriction will depend on a somewhat subjective assessment of the restriction in question (its nature and intensity) and of its effects. The border between what complies and what infringes competition law can thus potentially be narrow. On the other hand, this logic allows the European Commission to block exempt some of the restrictions that have so far been treated as hardcore. In the past, some national competition authorities, e.g., the German Competition Authority (see, e.g., German Competition Authority (Bundeskartellamt), 2018, p. 3), have expressed the view that the evaluation of the (non)existence of a hardcore restriction should also take into account the specificities of a particular (national) market. Presumably, in response to these statements, the Commission now clarifies that the assessment of whether a restriction is hardcore cannot depend on the individual circumstances of the market or of one or specific customers (the Draft Vertical Guidelines, para. 188).

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