How the National Competition Authorities’ Decisions Fed Into the Modernization of the EU Vertical Agreements Block Exemption Regulation and Guidelines: The Example of the French Autority de la Concurrence

On April 20, 2010, The European Commission adopted a new Block Exemption Regulation on vertical restraints and its supplementary Guidelines. They replace the corresponding texts that dated back from 1999 and provide a new framework for analyzing distribution agreements for the next twelve years.

The main novelty of the BER lies in its Article 3, which narrows the “safe harbour” by taking into account buyer power. In addition to the incumbent 30 percent market share threshold for manufacturers, it introduces a new threshold that applies to distributors, and which is measured on the upstream market. This will induce a more detailed analysis at national or local levels and provide more refined tools to national competition authorities.

But this should not eclipse two major updates of the Guidelines in which NCAs’ experience and decisional practice were important contributors and which will significantly affect future enforcement, i.e. hardcore restrictions (I) and online sales (II).