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Competition Policy

Review of the VBER and Vertical Guidelines

Policy field

Competition: Antitrust

 

Background

Art. 101(1) of the Treaty on the Functioning of the European Union (“the 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 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, so-called vertical agreements.

The purpose of the review is to allow the Commission to determine whether it should let the Regulation lapse, prolong its duration or revise it.

According to Better Regulation Principles, the procedure is divided in two steps: (i) an evaluation phase and (ii) an impact assessment phase.

The objective of the evaluation phase (approx. 18 months) is to gather evidence on the functioning of the current Vertical Block Exemption Regulation and the accompanying Guidelines on Vertical Restraints. In line with the Better Regulation Principles, this evaluation will be based on five evaluation criteria: effectiveness, efficiency, relevance, coherence and EU added value. The evaluation phase includes a public consultation process allowing interested stakeholders to provide feedback and contribute suggestions. It will also take account of information gathered by the Commission during the E-Commerce Sector Inquiry, the results of which are summarised in the final report of 10 May 2017, and the Commission's recent case practice with regard to vertical restraints. It will also draw on the considerable experience of national competition authorities with enforcing the EU competition rules in this area as well as relevant European and national case law.

The objective of the impact assessment phase (approx. 24 months) is to inform and support the decision of the Commission to determine whether it should let the Regulation lapse, prolong its duration or revise it on the basis of the evidence gathered during the evaluation phase. It will verify the existence of any problem related to the current functioning of the Vertical Block Exemption Regulation identified during the evaluation phase, explore the underlying causes, assess whether EU action is needed, and analyse the advantages and disadvantages of available solutions.

 

Reference documents

Current legislation applicable to vertical agreements.

The consultation strategy document  for the evaluation of the Vertical Block Exemption Regulation.

 

Evaluation phase

The evaluation phase was launched on 3 October 2018 and its progress can be followed on the Website of better regulation

The evaluation roadmap was published on 8/11/2018. The deadline for stakeholders' feedback expired on 6/12/2018.

The public consultation was launched on 4/02/2019. The deadline for stakeholders to fill in the questionnaire expired on 27/05/2019.

Note that the questionnaire was slightly amended on 05/04/2019 following up on the feedback received by respondents pointing to possible un-clarity of some questions. The following amendments have been made. They are relevant only for respondents that are companies/business organisations. One question has been added: “Please estimate the percentage of your company’s annual turnover generated by direct sales to consumers (i.e. sales to final customers who consume the good/service) and by indirect sales (i.e. sales to third party intermediaries, such as distributors and wholesalers): ”The two subsequent questions (asking for the online and offline sales split and the percentages of online sales via third party websites) have been clarified by adding the specification of “direct” sales. We apologise for any inconvenience this may cause.

1. Results of the public consultation

164 stakeholders have filled in the questionnaire. Their replies are available on the Better Regulation webpage.

Some of the stakeholders have attached annexes to their replies.

13 position papers were also sent by stakeholders to the Commission in the context of the public consultation.

Factual summary of the contributions received in the context of the open public consultation on the evaluation of the Vertical Block Exemption Regulation

2. Contributions outside the public consultation

Booking.com’s response to the evaluation support study 

RBB Economics “The effects of vertical restraints and online sales in the cosmetics industry”, A report for Cosmetics Europe 

Position paper by the Federal Ministry for Economic Affairs and Energy and the Bundeskartellamt 

Letter from the Benelux countries 

Submission by the International Distribution Institute ("IDI")  

Submission by EMISA 

Submission by AECDR 

Submissions by FFF 

Submission by CNMI 

3. Contributions of the NCAs to the evaluation of the VBER and the VGL

Summary of the contributions of the National Competition Authorities to the evaluation of the Vertical Block Exemption Regulation 

4. Stakeholder workshop

Summary of the Vertical Block Exemption Regulation Evaluation Workshop. Annex I and Annex II to the summary 

5. Evaluation support study

Support studies for the evaluation of the Vertical Block Exemption Regulation  (version updated with executive summaries in DE and FR of the study on consumer purchasing behaviour in Europe)

6. Staff Working Document

Staff Working Document and its annexes summarising the results of the evaluation of the VBER (“Evaluation SWD”) was published on 8 September 2020. An Executive Summary is available in EN, DE and FR.

 

Impact assessment phase

After the publication of the Evaluation SWD, the Commission launched the impact assessment phase for the revision of the VBER. The progress of the impact assessment can be followed on the Commission’s Website of better regulation. ("Better Regulation Website").

On 23 October 2020, the Commission published the VBER inception impact assessment ("IIA"), which was the first milestone in the impact assessment phase. The deadline for stakeholders to give feedback on this inception impact assessment was 20 November 2020. A number of stakeholders gave feedback and their submissions are published on the Better Regulation Website.

Subsequently, on 18 December 2020, the Commission launched a public consultation to get more and more specific feedback, in particular on the impact of the policy options set out in the IIA on various parameters. To this end, it published an online questionnaire which stakeholders are invited to use to provide their experience and views. The deadline for providing such feedback is 26 March 2021.

On 5 February 2021, DG Competition published a Working Paper  presenting its views on how Article 101 TFEU can be applied in a specific type of vertical agreements, namely agreements with distributors that also act as agents for certain products of the same supplier. The Working Paper expresses the preliminary views of DG Competition and is without prejudice to the review of the VBER and the Vertical Guidelines. The Commission will analyse the practical experience gathered from such distribution arrangements and stakeholder feedback following the publication of the Working Paper, including through the ongoing public consultation, in view of clarifying the application of Article 101 TFEU in such distribution arrangements in the revised Vertical Guidelines. If you would like to provide feedback on the Working Paper, please contact the VBER team via the functional mailbox indicated below.

During the impact assessment phase, stakeholders will have further possibilities to provide their views. In particular, in the course of 2021, the Commission will publish a draft of the revised rules (VBER and Vertical Guidelines) for stakeholder to comment.

1. Results of the public consultation

118 stakeholders have filled in the questionnaire. Their replies are available on the Better Regulation webpage.

Some of the stakeholders have attached annexes to their replies.

7 position papers were also sent by stakeholders to the Commission in the context of the public consultation. The position papers published are the ones for which a confidential version was received.

Summary of the contributions received in the context of the open public consultation on the impact assessment of the Vertical Block Exemption Regulation

2. Contributions of the NCAs to the impact assessment of the VBER and the VGL

Summary of the contributions of the National Competition Authorities to the impact assessment of the Vertical Block Exemption Regulation 

3. Expert reports on the review of the Vertical Block Exemption Regulation

Expert report onActive sales restrictions in different distribution models and combinations of distribution models by Frank Wijckmans and Sarah Jaques

Expert report on Cases dealing with online sales, and online advertising, restrictions at EU and national level by Alison Jones

4. Consultation on the draft revised VBER and draft revised Vertical Guidelines

The drafts revised texts as well as an explanatory note can be found on the dedicated COMP webpage of the public consultation. All interested parties have the opportunity to provide feedback by 17 September 2021.

 

Contact details

Responsible services:
Directorate-General for Competition – Unit A.1 - Antitrust Case Support and Policy.
Please always indicate the reference number in your correspondence: HT. 5455

E-Mail adress:COMP-VBER-REVIEW@ec.europa.eu

Postal address:
European Commission
Directorate-General for Competition
1049 Brussels
Belgique/België

 

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