The European rules for distribution agreements and online platforms have been modernized. On 1 June 2022, a new block exemption regulation for vertical agreements entered into force. This concerns the relationship between manufacturer and distributor (distribution agreement) or wholesaler and retailer (purchasing agreement). This new block exemption will apply for the next 12 years. A transition period of one year is provided for contracts concluded before 10 May 2022.
Suppliers and buyers: check your agreements and see if adjustment is required! The most important changes are:
- Dual distribution agreements fall under the Vertical Block Exemption Regulation. A dual distribution agreement exists if a supplier not only supplies its goods or services through independent distributors, but also directly to end-users itself. As a result, this supplier competes directly with its own independent distributors, which may pose a competition problem. After all, it has become much easier to do so via their own online shops or via online marketplaces (e.g. amazon, ebay and bol.com). Information exchange by the supplier who also competes as a distributor with his customers (dual distribution) remains exempted. Attention: the market share of the manufacturer and the retailer at retail level will always be taken into account.
- Better protection of exclusive and selective distribution systems against imports from neighbouring territories (active and/or passive sales). Exclusive distribution areas can now be protected against active sales by distributors from selective distribution areas. Selective distribution areas can be protected against active and passive sales by distributors from exclusive distribution areas.
- Tacit renewal of non-compete clauses in distribution agreements after 5 years is now possible. A precondition is that the distributor has the possibility to effectively negotiate the distribution agreement or to terminate it by giving a reasonable period of notice.
- The price policy becomes a little clearer. The starting point is that it is still prohibited to oblige a customer to sell products or services at certain minimum or fixed prices. However, price monitoring and price reporting are not considered in themselves to constitute RPM. Where a supplier negotiates the commercial conditions with a final customer and then appoints the distributor who will carry out the transaction, the imposition of those commercial conditions, including the supplier’s sales price, does not constitute RPM.
- New hardcore restriction on online sales. Restrictions that, directly or indirectly, in isolation or in combination with other factors, have the object of preventing distributors from effectively using the Internet to sell their goods or services or from effectively using one or more online advertising channels, are considered an inherently prohibited hardcore restriction on online sales. In general, however, restrictions of online sales and online advertising do not constitute hardcore restrictions if the distributor remains free to operate its own online shop and advertise online.
- Double pricing for online sales versus sales in physical shops is permitted under certain conditions. It may now be considered acceptable for the customer to pay a different price for products sold online than for products sold offline. The condition is that the difference in the wholesale price is in reasonable proportion to the differences in investment and costs incurred by the buyer to sell in each channel.
