The Commission`s services working paper is an important step in the EC`s review of the VBER and guidelines; it completes the evaluation phase and initiates the impact analysis phase during which the EC will take a closer look at the issues identified. A draft revised rules are expected to be published in public consultation in 2021 and the new rules will come into force on 31 May 2022 until the expiry of the existing ERV and existing guidelines. Overall, the evidence gathered confirms that the VBER, as well as the guidelines, are useful instruments and must be maintained. However, the evaluation highlighted a number of issues relating to the functioning of the rules: the evaluation also indicates that the case law and practice of the application of certain vertical agreements and related restrictions have developed considerably since the adoption of the VBER. We can expect the VB and vertical directives to be updated to reflect EU jurisprudence on this issue. For example, under selective distribution agreements, a number of important judgments have been issued, including: vertical agreements are agreements between companies operating at different levels of the production or distribution chain, such as. B an agreement between a producer and a distributor. Current EU rules require companies to assess for themselves the compliance of their vertical agreements with EU competition law, which prohibits competition-limiting agreements under Article 101, paragraph 1, of the Treaty on the Functioning of the European Union. The VBER exempts certain types of agreements from the article 101 ban, paragraph 1, where certain conditions are met, giving companies confidence that their agreement is in line with EU competition law. Finally, the evaluation stresses that regulation should not only address known problems, but should also take into account possible new types of agreements and vertical restrictions, which are all the more likely as market conditions have accelerated in recent years. The future evolution of the market is obviously difficult to predict.
The Commission proposes that, in order for the rules to be as `sustainable` as possible, the rules should, as far as possible, contain principles specific to specific guidelines, in addition to the more specific guidelines on restrictions often close to them. However, the evaluation also shows that there remains some uncertainty as to the overall applicability of certain new assessments. For example, it is not clear how limited market bans are to certain types of products. And whether it is relevant to know to what extent other forms of online commerce are alternatives for the retailers concerned, for example.B. sales on the own websites of authorized distributors. We hope that the Commission will be prepared to provide guidelines in these areas of uncertainty in taking this case law into account in the rules. Following the 2019 public consultation, the VBER and vertical guidelines in general found that legal certainty in the area of sales law (and other vertical agreements) is being strengthened and that competition law compliance costs are being reduced. However, the 2019 consultation also highlighted the need to update current rules and guidelines to address trade trends that were not present at the time of the current regime`s adoption in 2010, including the growing importance of digital distribution models, in particular: one example is the RPM, an area that is certainly not new to be controversial.