Expert Report for the European Commission on the Review of the EU Vertical Block Exemption Regulation: Cases Dealing With Online Sales, and Online Advertising, Restrictions at EU and National Level

Abstract

In 2010 the Commission reviewed and replaced the generic block exemption applying to vertical agreements, Regulation 2790/1999, and its accompanying Guidelines, with a new Vertical Block Exemption Regulation (VBER), Regulation 330/2010, and Guidelines on Vertical Restraints. The fast growth of e-commerce since 2010 has, however, led to changes in the ways that suppliers distribute their products and services and to the types of restraints incorporated in distribution agreements. As many of these newer restraints are not addressed, or fully addressed, in the current VBER or Guidelines, the result has been a reduction in the legal certainty that the current regime aims to provide and an increase in compliance costs.The purpose of this report is to analyse how certain online sales restrictions and online advertising restrictions incorporated into vertical agreements have been appraised under Article 101 in cases since 2010 (at both the EU and national level), to identify any divergences that have occurred in that jurisprudence and to consider how such restraints should be analysed under the new regime. It makes a series of recommendations designed to increase legal certainty by clarifying, in the light of post 2010 case-law, when the VBER applies, and how Article 101 analysis is to be conducted when the VBER does not apply. The report focuses on restrictions on the use of third-party online platforms and price comparison websites, as well as on brand bidding in online advertising and dual pricing provisions.

Keywords: Article 101, Vertical Agreements, Online Selling Restrictions

JEL Classification: K21, L40, L42