On 10 October 2019 the Working Group on Competition Law met in Bonn at the invitation of the Bundeskartellamt. At the meeting over 120 competition law experts discussed and exchanged views on the theme "Quo vadis Vertical BER – Time for adaption to the digital economy?”

Professor Dr Konrad Ost, Vice President of the Bundeskartellamt: “The digital transformation of the economy poses new challenges to the antitrust assessment of vertical agreements. New competition restraints reflect the development of new digital forms of distribution and the increasing strength of platforms. Retailers face increasing competition from direct-selling manufacturers and hybrid platforms selling to end customers themselves. Both the legal framework and competition law practice must keep pace with the developments of the digital transformation. The current Vertical Block Exemption Regulation is the legal framework for vertical agreements and expires at the end of May 2022. The Bundeskartellamt will contribute to the ongoing debate at the European level by sharing its practical experience. We hope to see changes that make the rules clearer and more manageable.”

The Working Group on Competition Law is made up of a large number of university professors from law and economics faculties, high-ranking representatives of national and European competition authorities and ministries, as well as judges from the antitrust divisions of the Düsseldorf Higher Regional Court and the Federal Court of Justice. For more than 50 years the group has met annually to discuss fundamental issues of competition policy.

This year's conference was chaired by Professor Dr Ost. Marieke Scholz, Directorate-General for Competition of the European Commission, opened the discussions by reporting on the consultation procedure on the Vertical Block Exemption Regulation (VBER) at the European Commission. The panel discussion was held by Prof. Dr. Christian Wey of Düsseldorf University, Prof. Dr. Stefan Thomas of Tübingen University, Prof. Dr. Petra Pohlmann of Münster University and Arno Rasek, Chief Economist at the Bundeskartellamt.

They discussed theories of harm and efficiencies in competition restraints originating from manufacturers or platforms. Subjects of particularly intensive discussions were resale price maintenance and its assessment as well as the handling of parity clauses. The far-reaching prohibition of dual pricing systems also gave rise to lively discussions.

Various approaches to platforms and intermediaries in the context of the VBER were also considered. The participants agreed that the current regulatory framework does not sufficiently consider these more recent actors.

Finally, it was discussed whether the VBER’s legal framework is still up to the requirements of today in view of its rigid market share thresholds and hardcore restrictions. Some of the participants supported an increased flexibility of the VBER instruments to achieve a better balance between legal security and justice in individual cases.

The working paper which formed the basis for discussion and the individual statements of the conference participants are available soon (in German) on the Bundeskartellamt's website.