These are the words of Europe's chief antitrust enforcer,
Margrethe Vestager, introducing the Commission's public hearing
on October 6, 2016, on its preliminary findings of the e-commerce
sector inquiry. The promise of e-commerce alluded to by the
Commissioner for Competition means quite simply a wider choice of
goods available for purchase online, at lower prices across the EU
as well as cross-border access to digital content for consumers in
the EU. The major concern for the Commission is that e-commerce
still takes place nationally within the EU and not on a
cross-border basis across the 28 Member States, because of
contractual barriers erected by companies.
This hearing came hot on the heels of the 290 page behemoth
Preliminary Report on the e-commerce sector inquiry published by
the Commission on September 15, 2016 and reported on in detail in
our previous blog. The hearing was an opportunity for the
Commission to present its key findings, but its primary purpose was
to facilitate a dialogue between stakeholders including online
retailers and marketplaces, manufacturers, digital content
providers and right holders with competition enforcers and
consumers. The Commission was keen to hear different perspectives
before finalizing its final report on the sector inquiry and, in
particular, to understand the challenges and opportunities linked
to e-commerce in Europe, with the help of the business
The key takeaways of the hearing can be summarized as
What are the specific restrictions that the Commission is
likely to target?
The Commission kept its future enforcement plans resolutely
close to its chest, adopting a neutral stance and positioning
itself in learning mode for the day. Reading between the lines
though, the restrictions that are most likely to feature on the
Commission's enforcement radar include:
For consumer goods:
Price limitations on online retail
Restrictions to sell on
Limitations to sell cross-border
For digital content:
Restrictions on the availability of
licenses for content on a cross-border basis
The bundling of online rights with
The long duration of contractual
The public consultation is open until November 18,
2016 and the Commission is keen to obtain as much input as
possible from the business community before it will issue its final
guidance based on the outcome of its sector inquiry. This is the
last chance to influence the Commission's conclusions on the
sector inquiry, before it presses ahead with its final report which
it plans to issue in the first quarter of 2017.
The Commission's final report should give a clearer
indication of enforcement priorities and will be a precursor for
likely legislative change in the form of a revision to the Vertical
Agreements Block Exemption Regulation and to the Guidelines on
What should companies do?
This is the time for companies to do an internal review and
audit of existing contract terms and practices to bring them into
line with the EU competition law rules. There is also still time to
convey key concerns to the Commission and effectively lobby them as
part of the public consultation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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