The European Commission (Commission) is now evaluating whether Regulation 330/2010 (better known as the Vertical Block Exemption Regulation or VBER) and its accompanying guidelines (Vertical Guidelines) are still fit for purpose, particularly in today’s digital age.
Art. 101(1) of the Treaty on the Functioning of the European Union (Treaty) prohibits agreements between undertakings that restrict competition unless they contribute to improving the production or distribution of goods or services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, in accordance with Art. 101(3) of the Treaty. The prohibition of Art. 101(1) of the Treaty covers amongst others agreements – vertical agreements, i.e. the agreements entered into between two or more undertakings operating at different levels of the production or distribution chain, and relating to the conditions under which the parties may purchase, sell or resell certain goods or services.
The VBER provides a legal safe harbor and exempts the agreements between undertakings operating at different levels of the commercial chain from the general EU competition rules and allows suppliers to restrict a distributor’s active sales to a specific territory or customer group. The VBER and the Vertical Guidelines is an instrument of great importance in the European Union and its Member States which helps companies to self-assess the compatibility of their vertical arrangements with EU competition law.
The first VBER was adopted by the Commission in 1999. In 2010 it was replaced by the currently applicable Regulation which will expire on 31 May 2022. Taking into consideration the new market developments since 2010, in particular the significant growth of e-commerce and the rise of new market players such as online platforms, which essentially affect the distribution and pricing strategies of manufacturers and retailers and also led to an intense debate regarding what contractual restraints in an online world are acceptable, the current VBER does not cover the questions emerging from these digital developments.
The purpose of the ongoing evaluation is to gather evidence whether the Regulation is still effective, efficient, relevant and is in line with EU law, as it is also a great opportunity to clarify some grey areas in the current VBER and Vertical Guidelines. Upon the conclusion of the evaluation, the Commission will decide whether it should let the VBER lapse, prolong its duration or revise it, together with the accompanying guidelines.
It is anticipated that the evaluation process will at least provide the clarifications and further guidance on such issues as the combination of franchising with exclusive distribution, the circumstances in which recommended resale prices amount to resale price maintenance (e.g. practices prohibiting discounts applied by retailers, or practices compelling retailers to apply a price within a specific range defined by the supplier), the definitions of “active sales” and “passive sales”, the legal qualification and assessment of retail most favored nation clause, the distinction between independent traders and agents acting on behalf of a supplier. Guidance on these matters would certainly ease the companies, especially small and medium-sized enterprises, to self-assess the lawfulness of a vertical agreement based on the VBER and Vertical Guidelines.
It is also highly expected that with the update of the VBER and the Vertical Guidelines the questions concerning the online platforms, which do not fit into the traditional supplier/buyer relationship reflected in the existing regulation, will be clarified, for instance, whether online platforms can qualify as genuine agents and what relevant factors shall be taken into account in the assessment of it. It is also anticipated, that the explanations regarding such questions as the bans on sales via third-party online platforms, prohibitions on the use of price comparison websites, brand bidding in online advertising, as well as uncertainty regarding the treatment of intra-brand restrictions imposed by online platforms with a degree of market power, will be clarified.
The review of the VBER is divided into two phases. Evaluation phase, which was launched on 3 October 2018 and approximately takes 18 months, and will end upon the publication of Staff Working Document, which, in this case, is planned for Q2/2020. The main objective of this phase is to collect comprehensive evidence on the key competition issues arising in vertical relationships from the perspective of the businesses, consumers and EU competition law enforcers. The evaluation phase includes a public consultation process allowing interested stakeholders to provide feedback and contribute suggestions as well as gathering the information and experience from national competition authorities, relevant European and national case law.
Commission has already finished public consultation and received 164 contributions to the public consultation submitted through the online questionnaire from business associations, companies/business organizations, non-governmental organizations, academic and research institutions and law firms. The public consultation allowed the participants to express their view on the existing regulation and to emphasize the questions, which usually appears in practice.
As regards the enforcement perspective, the experience of the national competition authorities and the courts of the EU Member States applying the VBER and the Vertical Guidelines, have been particularly important for this evaluation. National competition authorities considered that legislation under revision has met its objectives and contributed to promote good market performance in the EU and that the Commission should maintain both instruments, while taking the opportunity of the review to clarify and adjust the current rules, notably in light of market developments over the last decade.
The Commission will publish results of the consultations in the form of a Staff Working document during the first half of 2020. Upon its publication, the second, impact assessment phase will be opened which approximately will take 24 months, until expiry of the VBER. During this period, the Commission will verify the existence of any problem related to the current functioning of the Regulation identified during the evaluation phase, explore the underlying causes, assess whether EU action is needed, and analyze the advantages and disadvantages of available solutions. However, it is very unlikely that any new rules will enter into force before the expiry of the current VBER and the Vertical Guidelines at the end of May 2022.