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Economic Principles and the Reform of the European Commission’s Approach to Vertical Agreements

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Introduction

In October 2018, the Commission began its evaluation of the Vertical Block Exemption Regulation (“VBER”) [1] and accompanying Vertical Guidelines, [2] which expire in May 2022. [3] The results of the evaluation were published in a Staff Working Document (the Working Document), [4] where the Commission notes that, while the VBER and Vertical Guidelines provide a useful instrument that increases legal certainty, “certain provisions…lack clarity, are difficult to apply or no longer adapted to the market developments that occurred since the adoption of the VBER and the Vertical Guidelines in 2010.” [5] Some of the key issues highlighted in the Working Document are as follows: A perceived lack of legal certainty due to divergent interpretation of the VBER by national competition authorities (“NCAs”) and national courts. [6] For instance, this was raised in the context of resale price maintenance (“RPM”) and most-favored nation (“MFN”) clauses. [7]

Likely practical difficulties with market definition, particularly when it comes to online platforms. [8] For instance, NCAs have sought greater clarity on whether a distribution platform’s market share “should be calculated for each market on which the platform purchases the products or services offered on the platform, or for all the […]

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