Vertical Agreements Block Exemption Consultation

The European Union is committed to the privacy of users. In the context of the public consultations, we stick to the policy on the protection of individuals with regard to the processing of personal data by the Community institutions, based on Regulation (EC) No 45/2001 on the processing of personal data by the EU institutions. The consultation process is an important development to follow, especially for companies active in online markets. Mr Linklaters reacted to the European Commission`s consultation (available here) and called for a less theoretical and pragmatic approach. The objective of the evaluation phase (approximately 18 months) is to gather evidence of the functioning of the current Vertical Block Exemption Regulation and the accompanying Vertical Restraint Guidelines. In line with better regulation principles, this evaluation will be based on five evaluation criteria: effectiveness, effectiveness, relevance, coherence and EU added value. The evaluation phase includes a public consultation process allowing interested parties to give their opinion and make proposals. It will also take into account the information gathered by the Commission in the context of the e-commerce sector inquiry, the results of which are summarised in the final report of 10 May 2017, as well as the Commission`s recent practice on vertical restraints. It will also draw on the considerable experience of national competition authorities in the application of EU competition rules in this area, as well as on Relevant European and national case law. Over the past decade, the VBER and related guidelines have proven to be an invaluable tool for businesses and businesses will no doubt welcome the Commission`s confirmation that (a version of VBER) will remain in force beyond 31 May 2022. However, in line with the feedback received by a number of companies and other stakeholders during the Commission`s consultation process, companies will also appreciate the Commission`s recognition of the need to update and document ongoing documents in order to take account of changes in national law and the business environment in which they are to operate. I hope that the updates will improve legal certainty, reduce compliance costs and create a stronger common framework for Member States` national competition authorities.

Factual summary of the contributions received in the context of the public consultation on the evaluation of the Green Block Exemption Regulation The Commission underlines that all issues relating to agreements pursuing SDGs will be taken into account in this context. The Commission will probably examine whether the assessment of sustainability benefits merits specific treatment in the context of the balancing referred to in Article 101(3) TFEU. More broadly, the Commission examines whether there are circumstances in which the pursuit of the objectives of the Green Deal would justify special treatment of agreements restricting competition. The VBER and its Guidelines exempt certain vertical agreements from the prohibition in Article 101(1) TFEU and contain certain `basic` restrictions against certain vertical practices. Until recently, the vast majority of case law on vertical restraints was at the level of national competition authorities and national courts. The Commission`s final report on the e-commerce sector inquiry was a turning point. Since its publication in May 2017, the Commission has again shown interest in vertical restraints and fined several companies in 2018 for restrictions on MPRs and cross-selling. It fined Nike and Guess, which limited cross-border sales in 2019. The Coty judgment of the Court of Justice of the European Communities (« ECJ ») also focused on the issue of the sale of online marketplaces, as the ECJ considered that a ban on platforms in a selective distribution system was permitted in certain circumstances. These recent decisions show that vertical agreements are likely to continue to be a topic of interest, including at the level of EU authorities. .

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