VBER DEEP DIVE - Dual distribution

🚀 How about I compete with my buyers? 🚀

Vertical agreements which are concluded between competitors do not benefit from the safe harbour of the VBER.

Like the previous VBER regime, the current VBER contains an exception to this rule for dual distribution: (non-reciprocal) vertical agreements between competitors are within the scope of the VBER if the buyer does not compete with the supplier at the upstream level where the buyer buys the contract goods.

Under the previous VBER, the exception only applied if the supplier was active as manufacturer. Under the new VBER, this is extended to importers and wholesalers, so the upstream level may now be the level where the supplier is active as manufacturer, importer, or wholesaler.

Hybrid platforms are excluded from the exception, so a vertical agreement between a provider of online intermediation services is outside the safe harbour if the services provider competes on the relevant market for the sale of the intermediated goods or services.

Having said this, the Commission indicates that it will not prioritize enforcement action in respect of hybrid platforms if the supplier opens up its own webshop for use by its buyers, but does not allow that webshop to be used to offer competing brands of products.

Interested in taking a deep dive into the new VBER?

✨ Join one of our interactive workshops https://lnkd.in/e8t_NQr8
✨ Read the Distribution Law Center’s wrap-up countdown https://lnkd.in/eCyihxsg

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