Active sales means the active addressing of customers in the exclusive territory or group of customers of another distributor, by e.B. through direct advertising, personal visits or advertising aimed at the group of customers or customers in that territory. The Supplier designates a Reseller as a sole or sole reseller in a territory, but the Supplier reserves the right to deliver the Goods directly to the End Users. The agreement does not contain any fixed strict restrictions. Restrictions on the territory in which or to which the distributor may sell – resellers must be free to decide where and to whom they sell, but restrictions on “active sales” are allowed (but only if (i) there is an exclusive agreement, i.e. the territories have been reserved exclusively for the supplier himself or another trader); and (ii) Supplier is not permitted to restrict “passive sales”). The current vertical guidelines stipulate that an agreement whereby the distributor pays a higher price for products to be resold online than for products to be resold offline is a hardcore restriction (passive selling). Therefore, the only way for a supplier to support a buyer`s offline or online sales efforts was to pay a lump sum. (c) the creation of an additional but more limited safe harbour for dual distribution where the supplier and its distributors have a combined retail market share of more than 10 % but still do not exceed the 30 % market share threshold set out in Article 3 of the DBERBERber Regulation. In such a case, all aspects of the vertical agreement remain exempt, with the exception of the exchange of information between the parties to the vertical agreement, which must be assessed in accordance with the rules applicable to horizontal agreements (Article 2(5)). Agreements between competitors are not covered by the block exemption.
However, the current Block Exemption Regulation provides for an exception to this rule for `dual distribution`, i.e. the situation in which a supplier sells its goods or services directly to final customers and competes with its distributors at retail level. The growth of e-commerce means that more and more suppliers are engaged in dual distribution, e.B. by operating their own branded website that sells directly to consumers while continuing to maintain a network of merchants selling to consumers – a situation that is surprisingly different from the landscape of 2010, when the current VBER was introduced. In addition, the revised draft Block Exemption Regulation now offers a clear position on a much-discussed topic, namely that suppliers of exclusive distribution systems can oblige their buyers to pass on active sales restrictions to their customers. In accordance with Article 4(b), such disclosure is possible where the buyer`s customer has entered into a distribution agreement with the supplier or with a party to whom the distribution rights have been transferred by the supplier. The amendment aims to improve the protection of investment incentives for exclusive distributors. On the 17th. In June 2021, the UK Competition and Markets Authority (CMA) published a consultation paper setting out its proposed recommendations for the UK`s approach to vertical agreements. Responses to the consultation will feed into the CMA`s final recommendation to the Secretary of State on whether to replace the VBER retained when it expires on May 31, 2022. The supplier undertakes to sell the contract goods only to the reseller with a certain agreed territory and undertakes not to mandate other resellers or to sell the goods directly to other customers in the territory.
The vertical guidelines aim to help companies assess for themselves whether their agreements fall within the scope of vber or whether they are eligible for an individual exemption under Article 101(3) TFEU. Dual distribution includes situations where a supplier sells its goods or services not only through independent distributors (e.B. retailers), but also directly to end customers who are in direct competition with its independent distributors. The increase in online sales – especially via suppliers` own online shops – has led to a significant increase in these cases of double selling. Agency contracts do not currently fall within the scope of Article 101(1) TFEU if the agent does not bear any insignificant financial or commercial risk related to contracts concluded or negotiated on behalf of the contracting entity. Although this definition is theoretically clear, it has proven to be quite complicated for companies, especially in situations of tripartite contracts or agreements with online platforms. The draft directive attempts to clarify the definition of the agency: an agency contract requires that the agent bear no risk or only insignificant risks of three types: according to the draft VBER, non-competition obligations with an indefinite duration or more than five years, and non-compete obligations after termination continue to be treated as excluded restrictions. Nevertheless, the draft guidelines now provide that non-compete obligations that can be tacitly extended beyond a period of five years are covered by the block exemption, provided that the buyer can effectively renegotiate or terminate the vertical agreement containing the obligation within a reasonable time and at a reasonable cost. From 2021, EU authorities will lose the power to conduct on-the-spot investigations (also known as “dawn raids”) in the UK. Instead, their investigative powers are limited to written requests for information from UK-based companies. The CMA will replace it as the central competition law enforcement authority in the UK and investigate anti-competitive agreements and any possible abuse of dominance.
In the case of exclusive distribution, it is a hardcore restriction to restrict the territory or groups of customers to whom an exclusive distributor may actively or passively sell the contract goods or services. The V-GVO project retains part of the scope currently provided for, for example, by .B. Restrictions on active sales to a territory or group of customers reserved for the supplier or allocated exclusively to one or a limited number of other buyers, or restrictions on sales to unauthorised distributors in another territory where the supplier operates a selective distribution system. .