EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

3.3.3 No Need for Equivalence between Online and Offline Sales Criteria In the context of a selective distribution system, currently, the Vertical Guidelines prohibit a supplier from imposing any obligations on its authorised distributors to discourage them from using the internet by imposing criteria for online sales which are not overall equivalent to the criteria imposed for offline sales. Otherwise, it is a hardcore restriction (the Vertical Guidelines, para. 56). The Draft Vertical Guidelines depart from this strict approach. Under para. 221 of the Draft Vertical Guidelines, the criteria imposed by a supplier on its authorised distributors for online and offline sales do not need to be identical. The premise is that the criteria imposed for online sales do not have as their object to prevent buyers or their customers from effectively using the internet for online sales. The Draft Vertical Guidelines in this context, unlike the Vertical Guidelines, no longer even mention the need for an equivalence test. Conversely, para. 221 of the Draft Vertical Guidelines explicitly confirms that the supplier may set specific requirements to ensure certain service quality standards for the online channel, e.g., the set-up and operation of an online after-sales help desk, covering the costs of customers returning the goods or the use of secure payment systems. The change of the European Commission’s approach is based on the different characteristics of the online and offline channel (the Draft Vertical Guidelines, para. 221). The author of this paper is aware from her own experience that businesses have found the equivalence test very difficult to deal with and have sometimes set “artificial” criteria that they did not really need, just with the aim of meeting the equivalence test. Therefore, the author welcomes the proposed amendment. However, more specific guidance on the edge beyond which the European Commission will consider that a difference in criteria has the effect of hindering the effective use of the internet for online sales could be useful to facilitate businesses self-assessment of the criteria. 3.4 Safe Harbour for Parity Obligations, Except the Wide Ones Parity obligations, also known as Most FavouredNation clauses (MFNs) or Across Platform Parity Agreements (APPAs) include a commitment of the supplier (in recent case-law usually a hotel) to offer the services or goods to the other party (so far usually an online travel agency) on conditions no less favourable than those offered by the supplier to certain other parties or on certain other channels (the Draft Vertical Guidelines, para. 333). According to Article 5(1)(d) of the Draft VBER, the block exemption does not apply to a wide retail parity obligation, i.e., to “any direct or indirect obligation causing a buyer of online intermediation services not to offer, sell or resell goods or services to end users under more favourable conditions using competing online intermediation services.” Under para. 238 of the Draft Vertical Guidelines, the obligation may be expressed or applied by other direct or indirect measures andmay

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