The objective of the VBER is to exclude from the prohibition of Article 101, paragraph 1, the VERTEA vertical agreements which can be assumed to meet the conditions of Article 101, paragraph 3, because they do not harm competition. The vertical guidelines contain guidelines for the interpretation of the VBER and section 101. The general principle (with a few exceptions) is that an agreement falls within VBER`s safe harbor, provided it does not include “hardcore” restrictions and producers and distributors do not hold more than 30% market share. The system aims to ensure legal certainty and promote efficiency. The final report concludes that without the existence of the VBER and the guidelines, the legal costs for businesses would be much higher and the legal certainty associated with the assessment of vertical agreements would be reduced. However, some stakeholders pointed out that the current VBER increases compliance costs for some businesses because they do not sufficiently reflect the growth of digital commerce over the past decade. Until recently, the vast majority of vertical restriction jurisprudence was at the level of NCAs and national courts. The Commission`s final report on the sectoral inquiry into e-commerce was a turning point. Since its publication in May 2017, the Commission has reiterated its interest in vertical restrictions and in 2018 has imposed fines on several companies for restrictions on MPRs and cross-selling. It fined Nike and Guess for restricting cross-border sales in 2019. The judgment of the European Court of Justice (ECJ) also focused on the issue of the sale of online marketplaces, with the ECJ ruling that a ban on a platform in a selective distribution system was permitted in certain circumstances. These recent decisions show that vertical agreements are likely to remain a topic of interest, including at the level of the EU authorities. Therefore, the current assessment of the effectiveness, efficiency and relevance of the VBER and its guidelines is important in light of digital changes in vertical relationships.
Although the final report provides an overview of the likely priority, the Commission still needs to carry out a detailed impact assessment, which means that no new regulations are expected before the expiration of the VBER in May 2022. Maintaining resale prices (“PMRs”) is considered an essential restriction under the VBER, so it is illegal, unless the party applying it can prove that it has an appropriate justification for effectiveness. As a result, stakeholders confirmed that the use of PMRs has declined over the past decade, but minimum prices for resale prices and minimum prices are still used to some extent. The consultation showed that the guidelines are not sufficiently clear in the rules applicable to MPRs.