On December 13, 2019 the Commission published an anonymized summary of the contributions submitted by NCAs during the Commission’s ongoing evaluation of the Vertical Block Exemption Regulation (“VBER”) and the accompanying Guidelines on Vertical Restraints (“Guidelines”), which will lapse in 2022. The Commission received 20 contributions from NCAs across the EEA.
The NCAs agreed that the VBER has met its objectives to provide helpful guidance and legal certainty to companies and should therefore be maintained. In the NCAs’ view however, the VBER should be amended to provide additional and updated guidance, in particular on the following issues:
- Recent market developments brought about by new technologies, such as the proliferation of online sales and online platforms, which necessitate an update of the VBER and the Guidelines to take account of, in particular, the nature of platform’s commercial relationships, whether horizontal or
- In light of the exponential growth of e-commerce over the past decade, and companies’ distribution strategies evolving to include online sales channels, the NCAs have requested additional guidance on the distinction between independent traders and agents acting on behalf of suppliers, and whether online platforms can qualify as true While most online platforms do not assume risk when selling a supplier’s products, they bear the risk of investing in infrastructure. Additionally, they typically have strong bargaining power, and cannot be seen as an integrated part of a supplier’s distribution system.
- NCAs had difficulties in the past applying the 30% market share threshold to online They saw a distinction between platforms that merely facilitate transactions between independent buyers and sellers, often charging a commission (e.g., platforms like eBay or Booking.com) and platforms that may purchase goods themselves and subsequently sell them on to buyers (e.g., Amazon). NCAs also questioned whether companies providing similar services in the offline sector should be taken into account when calculating these market shares. More generally, some NCAs considered that the 30% threshold should be reviewed to allow for a more accurate assessment of cumulative effects of similar vertical restrictions in the same market.
- The NCAs also asked for further clarity and stronger guidance on hardcore restrictions, including the definition of active and passive sales, resale price maintenance, and territorial and/or customer restrictions. NCAs have queried whether the prohibition of dual pricing systems should be reviewed to allow companies to adjust their wholesale prices for online sales compared to sales through bricks and mortar outlets to reflect the significant differences associated with
The NCAs’ contributions highlight many of the same issues raised during the public consultation in late 2018. The consensus remains that the VBER is an important resource providing legal certainty to companies, but should be updated to keep up with the significant changes e-commerce has brought about.
 A summary of initial feedback received from industry players on the VBER consultation in response to the Commission’s evaluation roadmap was previously discussed in our November 2018 EU Competition Law Newsletter.
 This includes one non-EU member of the EEA. NCAs in the EU are bound by the VBER when assessing vertical agreements and the Guidelines serve as a non- binding accompaniment.
 The views expressed in the Commission’s summary were also broadly echoed by the German Federal Ministry for Economic Affairs and Energy and the Bundeskartellamt in a separate position paper, see Comments by the Federal Ministry for Economic Affairs and Energy and the Bundeskartellamt assessing Commission Regulation (EU) No. 330/2010 on the application of Article 101(3) TFEU to categories of vertical agreements and concerted practices and Guidelines on Vertical Restraints, October 8, 2019, available at: https://ec.europa.eu/competition/consultations/2018_vber/bundesministerium_ bundeskartellamt_en.pdf.
 Moreover, where platforms are operating on multisided markets, it is not clear whether having a 30% share on one side of the market is sufficient to meet the thresholds.
 For example, in oligopolistic markets where two-to-four players may have market shares fluctuating around the 30% mark, the same practices may be permissible for some competitors but not others.