State of play, main conclusions, outlook

Article 101(1) of the Treaty on the Functioning of the European Union (“the Treaty”) prohibits agreements between undertakings that restrict competition unless they contribute to improving the production or distribution of goods or services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, in accordance with Article 101(3) of the Treaty. The prohibition in Article 101(1) of the Treaty covers, amongst others, agreements entered into between two or more undertakings operating at different levels of the production or distribution chain, and relating to the conditions under which the parties may purchase, sell or resell certain goods or services (so-called “vertical agreements”).

Council Regulation 19/65/EEC empowers the Commission to apply Article 101(3) of the Treaty by regulation to certain categories of vertical agreements and corresponding concerted practices falling within Article 101(1) of the Treaty for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty. The Commission made use of this empowerment by adopting a measure that declares Article 101(1) of the Treaty not applicable to certain categories of vertical agreements (so-called “Vertical Block Exemption Regulation”). The Vertical Block Exemption Regulation adopted in 2010 (Commission Regulation (EU) No 330/2010) was due to expire on 31 May 2022. The 2010 Vertical Block Exemption Regulation was accompanied by a Commission Notice providing guidance on the interpretation of the Regulation and more generally on the assessment of vertical agreements under Article 101 (“Guidelines on Vertical Restraints”).

The purpose of the evaluation was to gather evidence on the functioning of the 2010 Vertical Block Exemption Regulation and the Guidelines on Vertical Restraints. It served as a basis for the Commission to decide whether it should let the 2010 Vertical Block Exemption Regulation expire, prolong its duration or revise it, together with the Guidelines on Vertical Restraints, in light of the market developments that have occurred since the adoption of the Regulation and Guidelines in 2010, notably the increased importance of online sales and the emergence of new market players such as online platforms.

Estimated savings and benefits

The purpose of the Vertical Block Exemption Regulation is to exempt from the prohibition contained in Article 101(1) of the Treaty those vertical agreements for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) of the Treaty. The Guidelines on Vertical Restraints provide guidance on the assessment of vertical agreements under both the Regulation and Article 101 of the Treaty. Undertakings therefore rely on both the Regulation and the Guidelines in order to assess whether the vertical agreements they enter into are compliant with Article 101 of the Treaty.

The Regulation and Guidelines aim to increase legal certainty for market players entering into vertical agreements, in particular by creating a safe harbour for some categories of agreements, thereby allowing undertakings to assess their agreements more efficiently and to reduce compliance costs.

The evaluation of the Vertical Block Exemption Regulation and Guidelines on Vertical Restraints assessed to what extent the current regime has contributed to achieving a reduction of compliance costs and whether these costs would increase if the Commission were not to prolong or revise the Regulation and Guidelines.