EU: Rethinking verticals?

The European Commission (‘EC’) is currently reviewing if the so-called Vertical Block Exemption Regulation (‘VBER’), which exempts certain categories of vertical agreements from the prohibition on anticompetitive conduct and which will expire on 31 May 2022, should lapse, its duration should be prolonged or it should be revised.

During the evaluation process, the EC gathers information from various sources including businesses, consumers and national competition law enforcers to check whether the Regulation ‘is still effective, efficient, relevant, in line with other EU legislation and adds value’. The EC has already conducted an initial evaluation period which ended in December 2018. The entire review process is anticipated to end in the second quarter of 2020. Stakeholders now have the chance to participate in the public consultation process, including a stakeholder workshop, starting in the first quarter of 2019. Stakeholders can use this consultation to express their views on the current framework and, in particular, the VBER’s suitability for coping with new market developments since its adoption in 2010, namely whether and how the Regulation needs to be adjusted to the rising importance of online sales, the emergence of new market players such as online platforms and the increase in dual distribution strategies, for example. The consultation process will probably also address the use of price-matching and price-monitoring algorithms, the role of search engines and online marketplaces. Many of these issues were the subject of recent judgments by the European Courts and are likely to continue to pose legal challenges.

Companies should assess whether they can contribute their opinion during the evaluation process. The findings and results of the review will be published by the EC in a summary report.