VBER DEEP DIVE - Hybrid platforms

After a short summer break, we are happy to be back with a new VBER Deep Dive, this week focussing on hybrid platforms.

Hybrid platforms are a new concept in the VBER. They are related to 'online intermediation services', another new concept in the VBER.
Online intermediation services are services that allow companies to offer goods or services to other companies or final consumers and that in so doing facilitate the initiation of direct B2B or B2C transactions. Examples are online marketplaces, app stores, price comparison tools and social media services used by companies (e.g., LinkedIn or Instagram).

A provider of online intermediation services can be a competitor on the relevant market for the sale of the intermediated goods or services. This is when the provider has a hybrid function, and its platform is a hybrid platform. Amazon is the most well-known example: Amazon is a provider of online intermediation services, allowing third parties to use its online marketplace to offer their products for sale (first vertical relation); Amazon itself may also distribute the products of those parties via its marketplace (second vertical relation).

What are the most important rules on hybrid platforms under the VBER?

- Starting point: A provider of online intermediation services is a supplier under the VBER. 

- Safe harbour? No. The dual distribution exception does not apply to hybrid platforms. In dual distribution, the supplier competes at the downstream level with its buyers. Dual distribution is covered by the VBER although it is an agreement between competitors. The safe harbour of the VBER however does not extend to hybrid platforms. 

- Why? Providers with a hybrid function may want to favour their own sales and may have the ability to influence the outcome of competition between companies that use their online intermediation services.

- Consequence? Vertical agreements relating to the provision of online intermediation services require an individual exemption if they are concluded by a provider with a hybrid function. 

- Enforcement priority? Not necessarily, in the Vertical Guidelines, the Commission says that it will not prioritize enforcement against hybrid platforms if the supplier only allows its buyers to use its web shop but not to offer competing brands of products and the supplier is not otherwise active on the relevant market for the provision of online intermediation services. This is useful to know for suppliers with a web shop for their own products that offer their buyers, which do not necessarily have their own web shop, to use the web shop of the supplier to sell online.