Section 101 may apply to vertical restrictions (in the sense of question 2) provided they do not apply: vertical restrictions are restrictions on the competitive behaviour of a party in such vertical agreements. Vertical restrictions include: exclusive distribution, certain types of selective distribution, territorial protection, export restrictions, customer restrictions, resale pricing, exclusive purchase obligations and non-competition obligations. In Section 1.1, point (a), of the vertical exemption, a vertical agreement is defined as follows: in any event, the category exemption regulation provides that agreements concluded prior to the entry into force of the regulation on June 1, 2000 and meeting the conditions of existing exclusive, exclusive or franchised distribution exemptions remain exempt until December 31, 2001. Restrictions on cross-selling between distributors (at any level) in a selective distribution system and restrictions on the sale to end-consumers by distributors at the level of a selective distribution system are now explicitly considered “hard core”, i.e. on the blacklist. 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 Commission is highly selective in the selection of plans for which it will provide informal guidelines and, given the vertical class exemption and vertical guidelines, it is unlikely that the Commission will issue individual guidelines for vertical restrictions. In general, the Commission believes that the parties are well placed to analyse the effects of their own behaviour. The authors are not aware of a case in which the Commission has proposed informal guidance to the parties. Fourth, distributors designated in a selective distribution system may be excluded from selling to unlicensed distributors (see question 36).