New Vertical BER in Place

Jul 22, 2022 Benn-Ibler Rechtsanwälte

The EU Commission's new Vertical Block Exemption Regulation (Vertical BER) has been in force since 1 June 2022. It replaces the previous regulation from 2010. The main changes are briefly outlined in the following:

Two-way Distribution (Article 2(4))

The exemption for non-reciprocal vertical agreements between competitors in cases where suppliers sell goods and services not only upstream but also downstream (thus competing with their independent distributors) has been extended. It applies where suppliers are active upstream as manufacturers, importers, or wholesalers and, at the same time, are active downstream as importers, wholesalers, or retailers, whereas the buyer is a downstream importer, wholesaler, or retailer, but not an upstream competitor.

However, the exchange of information in dual-track distribution is only permitted if the information exchanged is directly related to the implementation of the vertical agreement and is necessary for the enhancement of production or distribution (Article 2(5)).

Likewise, it is not permitted to conclude vertical agreements on the provision of online intermediary services where the provider of the mediating service is also a competitor on the relevant market for the sale of the mediated goods (Article 2(6)).

Active Selling

Certain constraints on a buyer's ability to actively target individual customers (active selling) are now permitted. For example, in the scope of exclusive distribution, a restriction on active selling is now permitted in the case of allocation of an area or customer group not only to one, but up to five exclusive distributors (Article 4(b)).

Internet Sales

The restriction on the effective use of the internet for the sale of contracted goods and services is now considered a hardcore restriction. This does not apply to certain restrictions on online sales or certain restrictions on online advertising (Article 4(e)).

Commission Regulation (EU) 2022/720 (10 May 2022)