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I.Introduction
Due to the vertical nature of franchise agreements from an antitrust perspective, franchise attorneys that represent clients seeking to expand or operate in the European Union (ELİ) must understand the scope of the EUs cartel prohibition as it is Ms. de Koning applied to vertical agreements.1 On May 10, 2022, the revised EU Block Exemption Regulation on Vertical Agreements2 (VBER 2022) and accompanying Guidelines on Vertical Restraints (Guidelines 2022) were published, and they became effective on June 1, 2022.3 The VBER 2022 replaces the former EU Block Exemption Regulation on Vertical Agreements (VBER 2010)4 and accompanying Guidelines (Guidelines 2010).5
This article explains key changes that were made in the VBER 2022 compared to the VBER 2010. To allow for a deeper dive into the nuances, changes, and clarifications stemming from this new piece of European legislation and its impact on the international franchising practice in Europe, this article first provides some background to EU competition law and its system of block exemption regulations. It then addresses the VBER 2022 and Guidelines 2022 themselves. This article will explain that, while clarifications were added on a number of topics, the most striking new rules relate to digital commerce, such as online sales, exchange of information in the context of dual distribution, Internet platforms, and retail parity (most favored customer) obligations, in particular when used across platforms.6
II. The Objective of Competition Law and the Function of the Block Exemption Regulations
The objective of competition law is to ensure effective and fair competition. It is, among other things,7 key that companies independently set their market behavior and that trade in the EU internal market (e.g., trade between EU member states)8 is not hindered. EU competition law contains several prohibitions addressing conduct that impedes effective and fair competition, such as the cartel ban and the ban on abuse of a dominant position.9 In brief, the cartel ban prohibits all collaboration between undertakings10 that has as its object or effect to appreciably prevent, restrict, or distort competition on the relevant market.
The cartel ban is set out in Article 101(1) of the Treaty on the Functioning of the European Union (TFEU).11 This ban not only aims to protect consumers from such detrimental arrangements, but also pursues the wider objective...