bsD
⤶ NEWSFEED
New EU Vertical Block Exemption Regulation & Guidelines
12 May 2022
EU Commission adopts new VBER and VBER Guidelines to account for modern distribution and e-commerce practice
More than a decade in the making, the new VBER package brings EU competition rules in line with current market realities. The “Commission Regulation n° 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices” is particularly significant for businesses that operate newer / online distribution models, especially those which may have warranted competition audits under the previous VBER instead of sitting squarely within the block exemption.
Novelties of note:
- Shared exclusive distribution amongst up to five “exclusive” distributors operating on the same territory or customer group (art. 1.1.h).
- Website languages can define “active sales” if they don’t match the language commonly used on the distributor’s assigned market (art. 1.1.l).
- Conditional exclusion of dual distribution from the block exemption if the upstream operator competing downstream with its own distributor exchanges unnecessary information with that distributor (art. 2.4 & 2.5) , or if the upstream operator is an online intermediation platform (art. 2.6).
- Reinforcement of distributors’ ability to pass on “active sale” restrictions to their customers (art. 4.b.i & 4.c.i.1).
- Exclusion of “best deal” clauses imposed by online intermediation platforms (otherwise known as commercial parity clauses or MFN clauses) (art. 5.1.d).
The 2022 VBER enters into force on 1 June 2022 (art. 11), and provides a one year transitional period ending 31 May 2023 for updating agreements previously exempt under 2010 VBER (n° 330/2010)(art. 10).
Though formal adoption of the Guidelines is pending translation into the official languages, businesses should already begin implementing any needed changes to their practice.