Blurry Lines – A Discussion on Information Exchange in Dual Distribution Scenarios from a Legal Certainty Perspective

Abstract: In this thesis the legal certainty issues connected to the way information exchange in dual distribution scenarios is treated by EU Competition law are discussed. The question of how such information exchange should be treated to increase the legal certainty is also discussed. Starting with an explanation of purely vertical and purely horizontal information exchange and how they are assessed under EU Competition law, it also touches on why these types of information exchange are treated differently. Furthermore, the thesis explains dual distribution scenarios, what rules apply to them and how these rules can be interpreted today. Other practices that blurry the lines between vertical and horizontal agreements are brought up and two closely related, recent Danish decisions on information exchange in dual distribution scenarios are explained and discussed. Three different definitions of legal certainty are presented and provide the basis for the discussion on the present issues related to information exchange in dual distribution scenarios and how these issues can be resolved. The main issue is a lack of predictability. This comes from the unclear meaning of the phrase “non-reciprocal agreement” in Article 2(4) VBER and from the unclarity as to how the practices that do not fit into the distinction between vertical and horizontal agreements, are to be treated. In order to increase the legal certainty in the future, the Commission can remove the phrase “non-reciprocal agreements” from the article, or at least explain it in the vertical guidelines. The Commission could also add a section to the new vertical guidelines that addresses how dual distribution scenarios, and similar practices should be assessed. This way it would be possible to fully take into account the special characteristics of dual distribution.