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Joost Haans, Paul Lugard, Mar 12, 2009
Block Exemption Regulation 2790/1999 (also referred to as the “BER”), the single most important legislative instrument in European antitrust law in the field of mainstream vertical restraints, has been in force for more than nine years. The Regulation that provides for a safe harbor for distribution agreements and other types of vertical agreements involving firms with market shares not exceeding 30 percent will expire on May 31, 2010. The accompanying EC Guidelines on Vertical Restraints (the “Guidelines”) setting out the methodology of analysis for vertical restraints including those that fall outside the safe harbor of the BER will share that fate…. The time has come to consider whether these and other points of criticism voiced at the time have materialized, how the Regulation has functioned in practice, whether the Regulation and Guidelines are in need of modification, and, if so, what must be done. This contribution contains some modest suggestions for the issues that the Commission may want to consider before embarking on modification of the BER.
