VBER DEEP DIVE - Information exchanges in dual distribution

13 Sep 2022

VBER DEEP DIVE - Information exchanges in dual distribution

🚀 Why don't you let me know what you're doing 🚀

In our previous Deep Dive, we explained that vertical agreements between competitors as a rule do not benefit from the safe harbour of the VBER, except for certain forms of dual distribution. Let’s suppose you are a supplier and that your dual distribution set-up is covered by the VBER. Does this mean that you are allowed to exchange whatever information about your business with your independent buyers, and vice versa?

Because you are competing with your buyers at the downstream level, this is not the case. Only the exchange of information that is directly related to the implementation of the vertical agreement and is necessary to improve the production or distribution of the contract goods or services is covered by the VBER (article 2(5)).

Whether this is the case, is largely a matter of self-assessment. Do have a look at the Vertical Guidelines, where the Commission lists examples of information that may be deemed to fulfil the conditions of the VBER (“white list” in point 99) or that are unlikely to fulfil these conditions (“grey list” in point 100). Examples of the latter are information relating to future prices at which either party intends to sell the contract products and, with a number of exceptions, information about identified end users of the contract products.

To avoid that the information exchange moves from the grey list to the black list of illegal information exchanges, the Vertical Guidelines (point 103) suggest that the parties may consider precautionary measures, which include information barriers between the personnel responsible for the supplier’s upstream activities and downstream direct sales.

Interested in really deep-diving into the new VBER?

✨Join one of our interactive workshops https://lnkd.in/e8t_NQr8
✨Read the Distribution Law Center’s wrap-up countdown https://lnkd.in/eCyihxsg
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