The globalised economy makes effective distribution ever more challenging. While contracts are generally governed by local law, the key antitrust parameters are harmonised throughout the EU; they apply equally in Portugal and Poland as in France or Finland. Following recent decisions to limit restrictions on online sales, this briefing provides an overview on the current position in the EU.

The European Commission’s vertical agreements block exemption regulation (“VABER”) sets out the legal principles that govern distribution agreements. VABER provides a “safe harbour” for agreements between companies with market shares below 30% and which do not contain a so-called “hardcore” restriction. If an agreement falls within the safe harbour, there is a presumption that it is not caught by Article 101 of the Treaty on the Functioning of the European Union, which is the key EU law prohibiting anticompetitive agreements.

A short note cannot address each and every aspect of this set of rules and we have focused on the issues that we see most often in practice. Specific rules apply to specialized agreements such as technology licensing or motor vehicle distribution. Note also that the rules described below only apply to genuine distribution agreements: agency agreements fall outside the scope of Article 101.

Territorial restrictions

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Selective distribution

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Non-compete clauses

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Resale price maintenance

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Online sales

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