CLS Blue Sky Blog

Wilson Sonsini Discusses the Future of Vertical Agreements in Europe

The Vertical Block Exemption Regulation1 (VBER)—the antitrust legislation governing most vertical arrangements in Europe2—entered into force on June 1, 2010. Among other things, it creates a safe harbor for vertical agreements which meet certain conditions, shielding them practically from the application of Article 101 of the Treaty on the Functioning of the European Union (TFEU). Guided by the VBER and the Vertical Guidelines3 published by the European Commission (EC), the onus is on companies to self-assess their vertical agreements.

As the VBER will expire on May 31, 2022, the EC has recently undertaken an evaluation of the VBER and the Vertical Guidelines to determine whether the EC should let the VBER lapse, renew it, or revise it. The EC published on September 8, 2020 a Staff Working Document4 on the results of this evaluation and while the Staff Working Document does not reflect a formal or final position of the EC, it gives an indication of staff’s current thinking on this topic.

Of major significance to the EC’s evaluation are market developments, and in particular the growth of online sales and online platforms, which have changed the nature of how many companies supply and distribute goods and services. This gear-change towards a digital economy has led to several issues with the functioning of the VBER and has made it increasingly difficult for companies to self-assess their vertical agreements with confidence. Executive Vice President Margrethe Vestager, in charge of competition policy, acknowledged that the rules will need to be adapted in a way that ensures they remain appropriate in a rapidly changing digital world,5 and this is sure to be a challenge the EC faces when revising the rules.

This piece highlights some of the key issues the EC has identified during this preliminary evaluation exercise, to give companies a sense of the changes to the law that the EC will likely seek to bring forward.

Market Developments and the Ripple Effects

The Staff Working Document stresses that search engines, online marketplaces and price comparison sites are particularly important for consumers who purchase online. It touts the fact that price transparency and price competition have increased with online trade, as consumers can obtain and compare information on-the-spot, and switch with ease between different purchasing channels. It acknowledges that the emergence of alternative online distribution models has made it easier for retailers (including smaller retailers) to access customers.

Commenting on the behavior of businesses, the EC finds:

Key Issues Identified

An overarching problem, say EC staff, is that the VBER and Vertical Guidelines do not properly cater for many of these market developments, limiting the effectiveness, efficiency, and coherence of the rules. Some of the issues identified in the Staff Working Document are:

Next Steps

The EC will now launch an impact assessment of possible revisions to the VBER. Stakeholders will be afforded further opportunities to provide input by commenting on the impact assessment, making submissions during a public consultation, and filing remarks on a draft of the revised rules, which the EC aims to publish during the course of next year.

U.S.-based companies doing business in Europe should be particularly attentive to changes that add to the list of hardcore or “by object” restrictions, as such clauses may prove to be difficult to enforce in Europe, notwithstanding the fact that they are presumptively valid in the U.S.


[1] Commission Regulation (EU) No 330/2010 of April 20, 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices, OJ L 102, Apr. 23, 2010, p. 1.

[2] Vertical agreements between competitors are subject to a closer level of scrutiny. See Regulation 330/2010, Art.2(4).

[3] Guidelines on Vertical Restraints, OJ C 130, May 19, 2010, p. 1.

[4] Commission Staff Working Document of the Vertical Block Exemption Regulation, available at: This link will open a PDF document that may not be accessible

[5] “Antitrust: Commission publishes findings of the evaluation of the Vertical Block Exemption Regulation”, EC press release (Sept. 8, 2020), available at:

This post comes to us from Wilson Sonsini Goodrich & Rosati. It is based on the firm’s memorandum, “The European Commission Re-Evaluates the Rules Governing Vertical Agreements: The Impact of Growth in Online Sales and Online Platforms,” dated September 15, 2020, and available here.

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