The last 10th of May, the European Commission has adopted the new Regulation EU 2022/720, Vertical Block Exemption Regulation (‘VBER’), accompanied by the new related Guidelines, following a thorough evaluation and review of the precent Regulation EU 330/2010 rules and guidelines. The revised VBER and Vertical Guidelines is entered into force on 1 June 2022.
The VBER regulates agreements in relation to the selling and distribution of goods and contains exemptions from the prohibition in Article 101(1) of the Treaty on the Functioning of the European Union (‘TFEU’) about agreements between companies (that are active at different levels of the production or distribution chain) subject to conditions.
The main changes to the previous rules focus on simplifying and adjusting the safe harbour ( the area where certain vertical agreements benefit from the exemption from art. 101 TFEU).
In particular, the new rules:
- a) Narrow the scope of the safe harbour as regards: (i) dual distribution, that is, where a supplier sells its goods or services through independent distributors but also directly to end customers, and (ii) parity obligations, that is, obligations which require a seller to offer the same or better conditions to its counter-party as those offered on third-party sales channels, such as other platforms, and/or on the seller’s direct sales channels, like its website. This means that certain aspects of dual distribution and certain types of parity obligations will no longer be exempted under the new VBER but must instead be assessed individually under Article 101 TFEU.
- b) Enlarge the scope of the safe harbour as regards: (i) certain restrictions of a buyer’s ability to actively approach individual customers, i.e. active sales, and (ii) certain practices relating to online sales, namely the ability to charge the same distributor different wholesale prices for products to be sold online and offline and the ability to impose different criteria for online and offline sales in selective distribution systems. These restrictions are now exempted under the new VBER, provided all other conditions for the exemption are met.
For further information, please refer to the reading of the VBER available at the following link:https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32022R0720&qid=1654075278887