EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

relate to conditions concerning prices, inventory, availability or any other terms or conditions of offer or sale. This is a restriction that is “grey-listed”. While it does not enjoy the benefits of a block exemption, it is not automatically prohibited. If the parties wish to agree on such a clause, they will have to self-assess its compliance with Article 101 of the TFEU, in accordance with the detailed guidance provided for this purpose in section 8.2.5 of the Draft Vertical Guidelines. Para. 239 of the Draft Vertical Guidelines expressly confirms that all other types of parity obligations benefit from the safe harbour in the Draft VBER (provided that the rules on market share thresholds in Article 3 of the Draft VBER are met). This applies to (i) wholesale parity obligations, which relates to the conditions under which goods or services are offered to undertakings that are not end users, (ii) parity obligations relating to the conditions under which manufacturers, wholesalers or retailers purchase goods or services as inputs, and particularly (iii) narrow retail parity obligations, which apply to the conditions relating to the supplier’s own sales or marketing channels (the Draft Vertical Guidelines, para. 239). For the sake of completeness, price parity obligations must not lead to RPM. This could be the case when a supplier agrees to price parity and sets a minimum resale price to a competing retailer in order to fulfil it. This would be considered a hardcore restriction and, thus, the safe harbour in the Draft VBER would not apply (the Draft Vertical Guidelines, para. 345). It should be underlined that this prohibition also applies in relation to online platforms. The European Commission considers online platforms (providers of online intermediation services) as ‘suppliers’ within the meaning of the Draft VBER (the Draft VBER, Article 1(d)), not as agents for the purposes of Article 101(1) of the TFEU (the Draft Vertical Guidelines, para. 44). Thus, the seller of goods to be sold on the platform is also considered the buyer of the online intermediary services provided by the platform. The online platform should therefore avoid imposing a fixed or minimum sales price (RPM) for the transaction that it facilitates. The European Commission’s approach to parity obligations is not surprising. It is based particularly on the previous case-law of national competition authorities and national courts concerning mostly parity clauses in the agreements between hotels and online travel agencies such as Booking.com, Expedia or HRS Hotel Reservation Service. Subject to the divergent case-law of the German Competition Authority and the national courts according to which even narrow parity clauses restrict competition (for the last decision of the Booking.com saga, see the German Federal Supreme Court, 2021), there is a consensus between the national competition authorities that narrow retail parity clauses usually have a low or no negative impact on competition, whereas wide parity obligations may raise competition concerns (European Commission, 2020, p. 184; Bostoen, F., 2017, p. 224 et seq. ; Krumlová, D., 2019, p. 65 et seq. ).

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