With the revised European vertical rules in effect since June 1, 2022, businesses are grappling with the meaning and implications of certain new additions to the vertical regime as they have a one-year transitionary period to bring their distribution arrangements in line with the new order. While the aim of the amendments has been to simplify and clarify the rules, they have not managed to escape complexity and ambiguity despite the extensive consultation with stakeholders. Businesses are no doubt analyzing with interest the additional flexibility presented by the amendments relating to shared exclusivity and dual pricing while trying to make sense of the new guidance on information exchange in the context of dual distribution and the new hardcore restriction involving minimum advertised prices (“MAPs”). Intermediaries (physical or online) also have much food for thought with the new rules on online platforms and agency. In this article, we zoom in on a few of these developments, including information exchange, MAPs, shared exclusivity and dual pricing, to assess the flexibility and the uncertainty that they present.
By Charlotte Colin-Dubuisson & Sima Ostrovsky[1]
I. INTRODUCTION
Summer 2022 has been marked by the back-to-back adoption of the refreshed EU Vertical Block Exemption Regulation (“EU VBER”),[2] the UK Vertical Agreements Block Exemption Order (“UK VABEO”),[3] and their respective Vertical Guidelines.[4]
There are now two distinct set
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