The main points of the EU vertical restriction system are: if the vertical class exemption is to apply, the supplier or buyer`s market share must not exceed 30% of the relevant market for the products concerned. The extension of this threshold to the market share of buyers in all cases (see question 17) has significantly reduced the number of vertical agreements that can be protected under the safe port of the category exemption regulation. For section 101 to apply, a vertical restriction must have a “substantial” effect on competition. In June 2014, the Commission published an updated version of its communication on minor agreements, which do not significantly restrict competition within the meaning of Article 101, paragraph 1, (de minimis communication). The de minimis communication sets out the circumstances under which agreements (including vertical agreements) are not considered by the Commission to be a violation of Article 101, paragraph 1. The Commission`s vertical guidelines do not distinguish between different types of online distribution channels, but they do contain some guidance on the use of third-party platforms. The vertical guidelines specify that a supplier may require, particularly in a selective distribution context, that buyers use third-party platforms only in accordance with the standards and conditions agreed between the buyer and the supplier for the purchaser`s use of the Internet. A supplier may also require customers not to visit the buyer`s website via a website that bears the name or logo of a third-party platform when the buyer`s website is hosted by the same third-party platform. However, no decision has been taken to date with regard to the Commission`s vertical restrictions, distinguishing the different types of online sales channels.
However, the Commission`s current investigation into consumer electronics and the appliance sector may look at differences in the treatment of different types of online sales channels (see question 32). The Commission`s investigation into Amazon`s e-book business, opened in June 2015 and concluded with a commitment decision in May 2017, focused on differences in the way online distribution channels are handled. The investigation focused on Amazon`s contractual rights to be informed of different or more favourable terms offered by publishers to competing online platforms and to offer at least as favourable terms. In January 2017, the Commission launched a consultation on Amazon`s proposed commitments to end the contentious practices and the Commission formally accepted Amazon`s commitments in May 2017. However, the Court of Justice`s GlaxoSmithKline decision also points out that the Commission is required to properly consider the arguments and evidence that a party presents in the context of the assessment of Article 101, paragraph 3, of the agreement that the agreement should be exempt from the prohibition of Article 101, paragraph 1.