By Sarah Long
Much has been written about most favored nation clauses or agreements in the context of online platforms (also known as retail “MFNs”), and the challenges faced by competition authorities in assessing the potential anti-competitive nature of such agreements. The perceived absence of a clear legal framework, and the lack of co-ordination between competition authorities in their approach to assessing retail MFNs, has resulted in significant uncertainty for businesses and practitioners alike. This article aims to provide a practical framework for the assessment of retail MFNs under EU competition law. It considers the application of the Vertical Block Exemption Regulation to retail MFNs, an assessment of retail MFNs under Article 101 and Article 102 TFEU, and a suggested policy approach for ex ante guidance for the assessment of retail MFNs.