The European Commission has published a Staff Working Document that summarizes the findings of the evaluation of the Vertical Block Exemption Regulation (“VBER”), together with the Vertical Guidelines. The aim of the evaluation was to gather evidence on functioning of the VBER, together with the Vertical Guidelines in order to decide whether it should lapse, be renewed in its current form or be revised.

Commission stated that VBER  and the Vertical Guidelines are useful tools that significantly facilitate the self-assessment by businesses of their vertical agreements and they help to reduce compliance cost for businesses entering into such agreements. On the other hand, due to market being significantly changed due to the growth of online sales and new market players such as online platforms and having number of issues that need to be addressed after the evaluation, Commission decided to reflect on how to address these issues to ensure that the rules remain fit for a world that is increasingly digital and changing at a fast pace.

The identified issues about the functioning of the rules include the following:

  • Some provisions lack clarity, such as the rules defining agency agreements.
  • Other provisions are difficult to apply or are no longer adapted to the current business environment, notably when it comes to applying the existing rules to new market players that do not fit into traditional supply and distribution concepts and to new online sales restrictions.
  • Some gaps are identified in the rules, such as a lack of guidance on how to assess retail parity clauses or restrictions on the use of price comparison websites, and areas that do not refer to case law issued since the adoption of the rules.
  • There remains significant scope for diverging interpretations of the rules by national competition authorities and national courts, which is an important issue of concern for stakeholders, as it reduces the benefit of the rules.
  • While the evidence suggests that the lists of hardcore restrictions and excluded restrictions are generally appropriate, there may still be scope to further reduce the burden for businesses associated with self-assessing the compatibility of their agreements with Article 101 of the Treaty on the Functioning of the European Union ("TFEU"). This could be achieved by exempting, in some specific areas of the rules, additional vertical agreements for which stakeholders have indicated that they would normally satisfy the conditions of Article 101(3) TFEU.
  • There is also room for simplification and further cost reduction, notably by reducing the complexity of the rules.

The evaluation has concluded that addressing the areas of the rules which are not clear and contain gaps or which have been found to be no longer adapted to recent market developments would improve legal certainty.

(European Comission , 08.09.2020 )



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