VBER DEEP DIVE - Resale price maintenance

Is it still prohibited for a supplier to impose fixed and minimum resale prices on its distributors?

The resale price maintenance regime remains largely unchanged. Under the new VBER, a supplier is still allowed to communicate recommended resale prices and impose maximum resale prices. Imposing fixed and minimum resale prices remains a hardcore restriction, and thus one of the most serious breaches of competition law. Although the general principles are not modified, the following additions and clarifications in the new VBER regime are worth noting:

- A provider of online intermediation services qualifies as a supplier, and may therefore not impose fixed or minimum sales prices for the transactions it intermediates.

- The new Vertical Guidelines provide an additional example of RPM that may lead to efficiencies and may therefore be allowed: a supplier may impose a minimum resale price or minimum advertised price (MAP) to prevent a particular distributor from regularly using a product as a loss leader, so as to avoid that the distributor’s behaviour would damage the brand image of the supplier.

- For the execution of a fulfilment contract, the supplier is allowed to impose a resale price on the company fulfilling the contract, if that company is selected by the supplier and not by the customer. Where the customer selects the company providing the fulfilment services, the imposition of a resale price by the supplier may restrict the competition for the provision of the fulfilment services and may amount to RPM.