Starting from June 1, 2022, Regulation 2022/720 will replace Regulation 2010/330 that was in force since June 1, 2010
Prepared by Stefano Cancarini and Federico Magi
For more than 10 years, Reg. 2010/330 has been the milestone of exclusive and selective distribution agreements discipline, usually applied by companies to regulate their commercial network.
It is evident that the market faced important changes in the last 10 years, in particular as a consequence of the spread of online platforms, which are more and more paramount in the distribution of goods and services. The new commercial models arisen in this context, however, were not easy to be classified under the traditional vertical relationships among suppliers and distributors.
In this situation, following a long drafting process, including a public consultation from July to September 2021, the European Commission, on May 11, 2022, approved and published the new regulation on vertical agreements and concerted practices according to Article 101, par. 3, of the Treaty on the Functioning of the European Union.
Reg. 2022/720 will replace Reg. 2010/330, expiring on June 1, 2022, and will be effective until May 31, 2034.
Reg. 2022/720 aims at providing an answer to the upcoming needs of the market due, in particular, to the increasing use of e-commerce solutions and online platforms. In this respect, the new Regulation introduces certain relevant opportunities that the companies may evaluate to implement in the light of the evolved market conditions. Among others, the following ones are worth to be mentioned:
- definition in a more specific way of the notion of “selective distribution” and “exclusive distribution”;
- variation on the range of the so-called “safe harbour” area, in which certain agreements are exempt from the ban on restrictive agreements and are considered as not endangering the competition in the internal market;
- acceptability of certain restrictions to the use of internet in online sales (as an example, the charge of different wholesale prices for products to be sold online and offline).
The new discipline therefore provides for solutions that may be useful for companies not only to reconsider their business models and adapt them to the fast market evolution, but also to ensure to enterprises having mainly physical stores (so called “offline”) some safeguards against disadvantageous situations that may occur.
The European Commission also drafted certain “guidelines” on vertical restraints, aimed at better defining the principles to be applied in the evalution of this kind of agreements and at providing companies with a useful tool for such analysis.
Therefore, it will be appropriate for the companies to reconsider their distribution networks both to ensure their compliance with the new law discipline, and to seize development opportunities granted by such regulation.
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