DORDA together with Heuking advises listed CANCOM SE on acquisition of K-Businesscom Group

Vienna, 3 May 2023 - Together with Heuking Kühn Lüer Wojtek (Munich) as lead counsel, DORDA advised CANCOM SE on the acquisition of K-Businesscom AG and all its subsidiaries. The merger results in one of the leading IT companies in the DACH region. The customers of both companies will benefit from the combined expertise in IT and digitalisation solutions. The takeover will increase CANCOM's market presence in the DACH region and extensively expand its solution and service capacities.

DORDA, led by M&A partners Martin Brodey and Christian Ritschka, took on an important role in the transaction since K-Businesscom is particularly active in Austria and its headquarters are located here. The Heuking team led by Boris Dürr has already advised CANCOM SE on M&A transactions in the past. In the current transaction, lawyers from Heuking and DORDA worked closely with colleagues from the law firm NNDKP (Romania).

The transaction was structured so that the consideration will be paid partly in cash and partly in shares of the listed CANCOM SE. The value of the cash- consideration is approximately EUR 165 million; in addition, financial liabilities of approximately EUR 37 million will be redeemed. As part of the consideration the existing shareholders will receive 3.5 million new Cancom shares with a market value of more than EUR 100 million, which will be created by way of a capital increase against contribution in kind. The closing of the transaction is subject to merger control approval.

K-Businesscom is Austria's leading ICT solutions and service provider with 1,650 employees and generated revenues of around EUR 520 million and EBITDA of around EUR 28 million in the past financial year 2022/23. The company is active as a digital business engineer for IT and business consulting as well as software development in Austria, Germany, Switzerland, Romania, and the Czech Republic. Parallel to the takeover of K-Businesscom by CANCOM, K-Businesscom has acquired all shares in the Swiss system integrator Belsoft Infortix AG, which, with its focus on data centres, networks, and security, most recently generated sales of around EUR 12 million with 35 employees. The acquisition strengthens K-Businesscom's good position in the Swiss market.

CANCOM SE is one of the leading IT systems providers in Germany with a focus on digital transformation, cloud computing, and IT security. As a hybrid IT integrator and service provider, CANCOM offers a range of services and solutions that includes business solutions and managed services such as cloud computing, analytics, enterprise mobility, IT security, hosting, as well as As-a-Service options. The CANCOM Group's range of IT solutions includes consulting, implementation, services, and the operation of IT systems, and thus the entire spectrum that CANCOM's customers need for the digital transformation. In the financial year 2022 CANCOM generated revenues of around EUR 1.3 billion and EBITDA of over EUR 100 million, currently employing approximately 4,000 employees. It is listed on the Regulated Market (Prime Standard) of the Frankfurt Stock Exchange and additionally on the SDAX and TecDAX; the current market capitalisation is approx EUR 1.3 billion.

In addition to partners Martin Brodey and Christian Ritschka, partners Heinrich Kühnert (Antitrust), Bernhard Rieder (Corporate Law), Nino Tlapak (Data Protection), Magdalena Brandstetter (Real Estate) and Bernhard Müller (Public Law) accompanied the transaction, supported by Counsel Andreas Seling (Intellectual Property Law) and Senior Associates Katrin Antl (Banking & Finance), Ulrich Weinstich (M&A), Florina Thenmayer (Employment) and Magdalena Nitsche (Insurance Law) as well as Associates Aleksandra Langer (M&A), Mirko Marjanovic and Petra Artner (Antitrust), Felix Zopf, Michael Hardt and Sebastian Stöckl (IP/IT/Data Protection), Julia Huber (Employment), Florian Hügel (Public Law), Diane Steindl (Real Estate) and Paul Traar (Insurance Law).


Legal 500 confirms DORDAs upwards trend

Vienna, April 14, 2023 - Legal 500 has been evaluating the best law firms in over 150 countries for 33 years, painting the most up-to-date picture of the global legal market each year. The aim is to highlight the specialist teams that provide the most innovative and solid advice, thereby helping clients find the best of the best.

In this year's recently published Legal 500 rankings a total of 37 DORDA experts and 19 Practice Areas received stellar reviews.

We are particularly proud of Axel Anderl  (Partner, TMT), Stefan Artner (Partner, Real Estate) and Andreas Mayr (Partner, Capital Markets), who were confirmed as part of the Legal 500 Hall of Fame and thus received the highest honour.

We are also happy that so many of the next generation of lawyers at DORDA are included in the Legal 500 ranking for the first time: Senior Associates Florina Thenmayer (Employment Law), Manuel Mayr (Employment Law), Stanislav Nekrasov (Tax), and Elias Schönborn (White-Collar Crime) as well as Associates Ida Woltran (Intellectual Property), Mirko Marjanovic (EU & Competition), and Robert Keimelmayr (Commercial Litigation).

With respect to practice areas, DORDA was able to achieve the top ranking "Tier 1" in the following six categories: Data Privacy & Data Protection, Dispute Resolution: Arbitration and Mediation, Dispute Resolution: Commercial Litigation, Intellectual Property, Real Estate and TMT.

One of the numerous laudatory quotes published on, in this case referring to the TMT team: "They are a market leader in their field and have a great reputation. We like their service approach [...]. There is no other team in Austria that has such depth and business insights."

The entire team at DORDA is proud and grateful to its clients and peers for their great feedback and continued trust.


DORDA highly awarded by Chambers Europe in 2023

Outstanding achievements for the internationally active Vienna-based law firm DORDA in the recognised Chambers Europe Ranking this year.

In particular, the practice groups Corporate/M&A, Dispute Resolution, Healthcare & Life Sciences and TMT: IT maintained their Band 1 rankings of the previous years.

Furthermore, Francine Brogyányi (Health & Life Sciences), Axel Anderl (TMT: IT and IP), Martin Brodey (Corporate/M&A), Stefan Artner (Real Estate), Florian Kremslehner (Dispute Resolution: Litigation) and Andreas Zahradnik (Banking & Finance: Regulatory) also confirmed their top rankings in Band 1.

We are also particularly pleased with the very positive client feedback published by Chambers Europe, such as the following quotes from existing clients on Francine Brogyányi and Axel Anderl:

"Francine Brogyányi is highly appreciated from a quality perspective; she is clear, responsive, and has a very good network. She is one of the best lawyers I work with in Austria."

"Axel Anderl is an outstanding lawyer with a tremendous expertise in the field of IP as well as IT."

Joining the Chambers Europe ranking for the first time are Partner Gunnar Pickl (Dispute Resolution: Arbitration), head of the Construction & Infrastructure Group, and Senior Associate Alexander Karl (Dispute Resolution: Litigation).

Chambers and Partners is an independent market research firm operating in 200 jurisdictions, providing detailed rankings and insights into the work of the world's leading lawyers.

In total, 24 DORDA experts can be proud to receive 32 individual rankings awarded in 15 practice areas by Chambers Europe.

Congratulations from the entire DORDA team!


DORDA represents ZF Friedrichshafen in acquisition of smart tachograph developer Intellic

DORDA's M&A and restructuring experts assisted ZF in the successful acquisition of the financially distressed intellic Germany GmbH including assets of the insolvent Austrian intellic GmbH.

Through this acquisition, ZF succeeded in expanding the digital fleet management segment and further strengthening its leading position as a 'one-stop shop' for commercial vehicle manufacturers, fleets, and industrial partners. The DORDA team, led by Christian Ritschka (Partner, M&A) and Magdalena Nitsche (Attorney, Insolvency & Restructuring), once again demonstrated their expertise and experience in distressed M&A transactions in this deal in the automotive sector.

The Intellic Group is a high-tech company with headquarters in Austria and a competence and research centre in Germany. As one of the European market leaders, Intellic develops and manufactures digital tachographs (trip recorders) and distributes them to the intelligent traffic systems sector. The intelligent tachograph is the product of the future and will ensure that commercial vehicles will be managed effectively. From Autumn 2023, European manufacturers are required to use the next generation of smart tachographs in newly registered trucks.

ZF is a globally active technology group and supplies systems for the mobility of passenger cars, commercial vehicles, and industrial technology. The acquisition of Intellic is another strategically important step for ZF to drive the "Next Generation Mobility" in the commercial vehicle industry. The company’s tachograph business will now be continued exclusively from Germany under the ZF name.

Partner and M&A expert Christian Ritschka"Transactions in an distressed situation require quick action, close coordination with the various stakeholders and good nerves. We are pleased to have successfully closed the deal."

DORDA assisted in all relevant Austrian legal aspects of the transaction, including conducting the legal due diligence, negotiating, and finalising the relevant transaction documents. The DORDA team, led by Christian Ritschka (Partner, M&A) and Magdalena Nitsche (Attorney, Insolvency & Restructuring) further consisted of Felix Hörlsberger (Partner, Insolvency & Restructuring), Nino Tlapak (Partner, IT/IP & Data Protection Law), Heinrich Kühnert (Partner, Antitrust & Competition), Veit Öhlberger (Partner, Trade & Distribution), Andreas Seling (Counsel, IP/IT), Emina Dedic (Associate, M&A), Franziska Hauser (Associate, Trade & Distribution), Paul Traar (Associate, Insolvency & Restructuring) and Michael Hardt (Associate, IT/IP & Data Protection).

GRUB BRUGGER's insolvency specialists, led by Jasmin Urlaub, advised on behalf of the German offices.


DORDA advises Nosto Solutions on the acquisition of findologic

Vienna, Austria – 16 December 2022 – DORDA supported the Finnish ecommerce company Nosto as local Austrian counsel on the acquisition of findologic Gesellschaft m.b.H., one of the world's leading providers of modern software solutions for online shops. The deal adds a significant number of Shopware merchants to Nosto’s already large Shopware roster, further strengthening its position as it expands to cover new markets and products.

The transaction closed on 15 December 2022 and is yet another example of DORDA's Digital Industries Group demonstrating its expertise and leading role in technology-related transactions involving innovation-driven markets.

DORDA's legal support for the transaction covered all relevant Austrian legal aspects of the transaction, including the performance of the legal due diligence as well as the assistance with the negotiation and finalization of the relevant transaction documents. Bird&Bird Finland acted as lead counsel for Nosto. Financial and tax advice was provided by KPMG. On the seller-side, Schönherr acted as Austrian legal counsel, supported by Roschier as Finnish counsel.

Nosto uses shopper behavioural data to create digital commerce experiences that create customers for life. An AI-Powered Commerce Experience Platform (CXP) designed for ease of use, Nosto empowers brands to build, launch, and optimize compelling digital experiences without the need for dedicated IT resources or a lengthy implementation process.

Findologic was founded in Salzburg, Austria, by Matthias Heimbeck in 2008. It is an ecommerce search leader in Germany, Austria, and Switzerland (DACH), empowering product discovery through its AI-powered platform for customers including Carrera Toys, Calumet Photographic, Alpha Industries, ASMC, and Kitlocker.

Christian Ritschka (Partner, M&A): "Once again, the interdisciplinary nature of our Digital Industries Group has proven to be a vital asset for technology focused deals. This transaction also signifies that Austria, Germany, and Switzerland seem to become important e-commerce markets in Europe."

The DORDA team led by Christian Ritschka further included Alexandra Ciarnau and Andreas Seling (IP/IT, Data Protection), Bernhard Müller (Public Law), Bernhard Rieder and Sarah Plasser (Corporate), Florina Thenmayer (Employment), Katrin Antl (Finance), Magdalena Nitsche (Insurance), Julia Sophie Haumer-Mörzinger (Real Estate), Heinrich Kühnert and Mirko Marjanovic (Antitrust) as well as Emina Dedic (M&A), Julia Huber (Employment), Philipp Proske (Real Estate), Paul Traar (Insurance), and Felix Zopf (IP/IT, Data Protection).

The successful mandate was made possible by the interdisciplinary set-up of DORDA's Digital Industries Group, which  is a team of experienced, technology-savvy lawyers in the digital and technology sector and thus the answer to complex, innovation-driven markets and companies for which a deep industry understanding of their strategic partner is vital.


DORDA advises PDFTron on the acquisition of Austrian tech start-up eversign

Under the lead of Patricia Backhausen and Christoph Brogyányi, DORDA advises global tech-group PDFTron on the acquisition of Austrian tech start-up eversign GmbH, a provider of digital signature solutions. This transaction is yet another example where DORDA's Digital Industries Group demonstrated its expertise and leading role in technology-related transactions involving innovation-driven markets.

The acquisition is not only of a strategic importance for PDFTron but was also challenging from a legal perspective because the digital signature business was spun-off from another group entity during the transaction. DORDA acted as lead counsel with the cooperation of US law firm Choate, Hall & Stewart LLP and UK law firm Armstrong Teasdale LLP. The transaction was signed in September 2022 and closed mid-November, after successfully obtaining FDI approval.

eversign GmbH, founded by Paul and Julian Zehetmayr, provides a service which offers digital signatures for documents (in particular, contracts) via the eversign platform. Attracting many clients worldwide, e.g., from Canada, the US, and the UK, eversign increased its customer base substantially in the brief period since its 2017 inception to over half a million users today.

PDFTron is the world's leading provider of document processing technology for developers and enterprises. The company's market-leading SDK drives digital transformation and powers next generation software applications with dynamic document viewing, annotation, processing, and conversion capabilities, as well as advanced features such as document understanding, data extraction, and redaction. With the acquisition of all shares in eversign, PDFTron envisages to further extend its technology platform in the end-user and no-code markets.

Patricia Backhausen (Attorney at Law, M&A, and Co-head of DORDA's Digital Industries Group): "Once again, the interdisciplinary nature of our Digital Industries Group has proven to be a vital asset for technology focussed deals. This transaction also signifies the increasing importance of Austrian tech start-ups that sometimes prove to be hidden champions even on a global basis. It was a true pleasure to have worked with PDFTron on this transaction!"

Christoph Brogyányi (Partner, Corporate): "We are very proud to have brought this cross-border acquisition to a successful closing in light of the rather tight timeline for the preceding carve-out. We sincerely congratulate PDFTron for closing this strategic deal."

Patricia Backhausen and Christoph Brogyányi were the lead lawyers of this transaction, supported by Angelika Holzer (Associate, Corporate). The FDI workstream was headed by partner Heinrich Kühnert (Competition/Antitrust), assisted by his associate Mirko Marjanovic. Partners Martin Brodey (M&A), Christian Ritschka (M&A), Nino Tlapak (IT/IP, Data Protection) and Bernhard Müller (Public Law), Counsel Andreas Seling (IT/IP), Attorneys-at-Law Manuel Mayr (Employment), Florina Thenmayer (Employment), Stanislav Nekrasov (Tax), Julia Haumer-Mörzinger (Real Estate), Julia Haunold (Corporate) and Magdalena Nitsche (Insurance) as well as Associates Corina Kruesz (IP/IT/Data Protection), Valentina Possegger (Employment), Emina Dedic (M&A), Anna Martseva (Insurance), Benjamin Kraudinger (IP/IT) further advised in this deal.

The successful advice was made possible not least by the interdisciplinary set-up of DORDA's Digital Industries Group, a few members of which were advising in this deal. DORDA's Digital Industries Group is an interdisciplinary team of experienced, technology-savvy lawyers in the digital and technology sector and thus the answer to complex, innovation-driven markets and companies for which a deep industry understanding of their strategic partner is vital. DORDA's Digital Industries Group sees itself as an innovation partner and masters digital complexity while considering all relevant areas of law.


COUNTRY UPDATE-Austria: ESG reporting

Environmental, social and governance (ESG) reporting is a major and evolving regulatory area in Europe. Disclosures play a crucial role in helping the financial sector address climate change and sustainability.


Successful DORDA Engagement as Austrian counsel in GD Towers acquisition for Austrian Market

Vienna, 14th of July 2022. DORDA has advised – as Austrian counsel – DigitalBridge Group, Inc. which today announced that funds affiliated with its investment management arm (collectively, “DigitalBridge”) together with Brookfield Infrastructure and its institutional partners (collectively, “Brookfield”) have reached an agreement to acquire a 51% ownership stake in GD Towers.

The transaction values GD Towers, the mobile telecommunications tower business of Deutsche Telekom AG, at EUR 17.5 billion, on a consolidated basis, including the assumption of net debt.

GD Towers is Germany’s largest tower company, owning 7,000 towers and communication sites in Austria and owning and operating over 33,000 towers and communication sites in Germany. GD Towers is led by an independent management team with decades of European tower company experience and a track record of delivering consistent growth and stable cash flows. GD Towers’ high-quality portfolio is supported by an anchor tenancy agreement with Deutsche Telekom, which will retain a minority 49% ownership stake in GD Towers following this transaction.

A large M&A deal team of over 25 DORDA lawyers in charge of Austrian aspects of the transaction was led by partner Andreas Mayr (M&A). The DORDA team included Gunnar Pickl (Construction & Infrastructure), Thomas Angermair (Employment Law), Stefan Artner (Real Estate Law), Christoph Brogyanyi (Corporate Law), Heinrich Kühnert (Competition and Antitrust, Energy Law, Telecommunications Law), Bernhard Müller (Public Law,  Regulatory Law, Telecommunications Law), Veit Öhlberger (Contract Law), Nino Tlapak (Data Protection, IT-Law, Intellectual Property Law), Paul Doralt (Tax Law), Andreas Seling (Intellectual Property Law, IT-Law), Patricia Backhausen (M&A), Florian Nikolai (M&A), Florina Thenmayer (Employment Law), Julia Haumer-Mörzinger (Real Estate, Tenancy Law, Construction Law), Alexandra Ciarnau (IT Law and Data Protection, Intellectual Property Law), Julia Haunold (Corporate Law), Magdalena Nitsche (Insurance Law), Stanislav Nekrasov (Tax Law), Philipp Pärtan (M&A), Isabel Maurer (M&A), Philipp Fedan (M&A), Michael Hardt (Data Protection, IP/IT), Angelika Holzer (Corporate Law), Mirko Marjanovic (Competition and Antitrust Law, Foreign Direct Investment Control, Telecom and Energy Law), Vivien Lux (Real Estate, Construction), Jia Zhou (Real Estate Law, Tenancy Law, Construction & Infrastructure)..


New competition law rules for distribution agreements - the new Vertical Block Exemption Regulation

New competition law rules for distribution agreements - the new Vertical Block Exemption Regulation

1. Introduction

After a long consultation period, the European Commission recently published the new Block Exemption Regulation for Vertical Agreements (Regulation (EU) 2022/720 "VBER"). The regulation will enter into force on 1 June 2022. New Guidelines on vertical restraints  ("Guidelines") will accompany the new VBER. Both replace the previous set of rules from 2010. Agreements which comply with the old VBER will benefit from a transitional period until 31 May 2023 before compliance with the new VBER becomes mandatory in order to benefit from the exemption.

The Commission's aim in revising the rules was to bring them in line with new market developments, especially in the digital economy. Although the number of changes is limited, they have great practical relevance especially (but not only) for online and dual distribution.

2. Much remains unchanged

Like its predecessors, the VBER 2022 applies to vertical agreements. An agreement is vertical if, for the purposes of the agreement, the parties operate at different levels of the production or distribution chain and it concerns the conditions under which the parties purchase, sell or resell goods or services. In addition to distribution, authorised dealer and franchise agreements, this also includes, inter alia, purchase and supply agreements. Commercial agency contracts are also included, unless they are already exempt from the prohibition of anticompetitive agreements based on the exception for commercial agents.

The market share limit for the exemption also remains unchanged. As under the VBER 2010, the exemption is subject to the requirement that neither the market share of the supplier nor the share of demand of the buyer exceeds 30%. During the consultation phase, the Commission had considered introducing an additional combined market share threshold of 10% on the retail market for dual distribution settings. This additional threshold was widely criticised and ultimately did not become part of the new rules.

The general structure of the VBER also remains unchanged. Hardcore restrictions (also called "black clauses"), which lead to the agreement losing the benefit of the exemption, are listed in Art 4. As before, they include resale price maintenance, territorial and customer restrictions and restrictions on the sale of spare parts to independent repair or service companies. Art 5 VBER continues to list the so-called "grey clauses", including in particular non-competition obligations. Although grey clauses are not exempted, the exemption continues to apply to the rest of the contract. The new VBER brings about changes and clarifications to both black and grey clauses.

3. Significant changes brought about by the VBER 2022

3.1. Changes regarding dual distribution

While, contrary to the Commission's original proposal, no additional market share threshold was ultimately introduced (cf. 2 above), the new VBER nevertheless contains substantial changes for dual distribution:

  • Under the VBER 2010, the exemption was limited to constellations in which a manufacturer marketed its goods both directly and through distributors. The VBER 2022 extends the exemption to dual distribution at different levels of the supply chain. It covers dual distribution not only by manufacturers, but also by importers and wholesalers.
  • Dual distribution by providers of online intermediation services however is excluded from exemption. While agreements between platforms and distributors may benefit from exemption, this does not apply to so-called hybrid platforms which are both active in the sale of goods or services and offer online intermediation services to competing sellers of the same goods or services. The concern underlying this carve-out is that hybrid platforms might distort the outcome of competition on the market for sale of the intermediated goods or services in favour of their own trading activities.
  • Moreover, Art 2(5) VBER 2022 limits the scope of the exemption as regards exchanges of information in dual distribution scenarios. Exchanges of information which are not directly related to the implementation of the agreement and are not necessary to improve the production or distribution of the goods or services concerned do not benefit from the exemption. This carve-out aims to exclude from the exemption exchanges of information which concern the horizontal relationship between the distribution activities of the hybrid supplier and its independent dealers. Such exchanges of information however are not automatically prohibited. Rather, they fall to be assessed under the Commission's Horizontal Cooperation Guidelines.

3.2. Changes to black clauses

3.2.1. Territory and customer restrictions

The rules on the exemption of restrictions of the distributor's right to sell the contract goods or services into certain territories or to certain customers have been completely revised. The changes increase the freedom to design distribution systems in conformity with the VBER.

  1. Exclusive distribution agreements (exclusivity in favour of the distributor)

Previously, restrictions of active (but not passive) sales by distributors into territories or to customers were exempted if the supplier had reserved these territories or customers for itself or allocated them to another dealer. The VBER 2022 extends the scope of to restrict the sales of distributors, in particular as follows:

  • Restrictions of active sales are now permitted into territories or to customers assigned not only to one, but to up to five exclusive distributors;
  • Suppliers may now restrict active and passive sales by exclusive distributors to unauthorised distributors in another territory where they operate a selective distribution system. Previously, such restrictions were considered hardcore restrictions, which meant that protection against grey market sales could no longer be ensured if exclusive and selective distribution coexisted in adjacent territories.
  • Unlike before, these restrictions may also be passed on to the customers of the tied distributor (i.e. the second distribution level).

  1. Rules for selective distribution systems

The rules regarding selective distribution systems have been reworded, but largely correspond to prior law. As before, active and passive grey market sales, i.e. sales to unauthorised distributors in the selective distribution area, may be prohibited. In return, cross-supplies among selective distributors may not be restricted (with the exception of sales by members at the wholesale level to final consumers).

One important clarification brought about by the VBER 2022 is that suppliers may restrict active sales by members of a selective distribution system to exclusively allocated territories or customer groups. While such restrictions were already permissible under the VBER 2010, this was not readily apparent from the text of previous regulation.

  1. Rules for free distribution

For the first time, the VBER 2022 provides for rules for restrictions on buyers who are neither exclusive nor selective distributors (Art 4 lit d). Such buyers may be subject to restrictions of their

  • active sales into exclusive territories or to exclusively reserved customers; and
  • active and passive sales to unauthorised distributors in selective distribution areas.
3.2.2. Online sales

The VBER 2022 contains explicit rules regarding restrictions of online sales, which previously had to be inferred from case law and guidelines. Pursuant to Art 4 lit e VBER 2022, restrictions of the effective use of the internet for the sale of contract goods and services are now considered hardcore restrictions. This essentially corresponds to existing case law, pursuant to which restrictions which de facto amount to a prohibition of online sales do not benefit from exemption (ECJ Case C-439/09 Pierre Fabre).

In contrast, restrictions on online advertising which are not aimed at preventing the use of an entire online advertising channel, as well as other restrictions on online sales, may benefit from exemption. The Guidelines provide a number of clarifications:

  • A "restriction of an entire online advertising channel" exists if the distributor is prevented from using entire channels such as search engines and price comparison services. This corresponds to case law, pursuant to which such restrictions did not benefit from exemption under the VBER 2010 (Commission AT.40428 Guess; German Federal Supreme Court KVZ 41/17 Asics);
  • In contrast, restrictions on the use of online marketplaces continue to benefit from exemption (ECJ C-230/16 Coty);
  • Dual pricing, i.e. the application of different wholesale prices depending on whether the distributor sells the goods through online or offline channels, is no longer automatically considered a hardcore restriction. If the price difference is reasonably related to the difference in costs of each distribution channel, it can benefit from exemption. On the other hand, dual pricing which aims to restrict sales to certain territories or customers or to reduce the overall volume of internet sales will be qualified as hardcore restrictions;
  • Under the VBER, suppliers may also lay down quality specifications for online sales, for example for the design of the online shop or with regard to the presentation of the supplier's goods. Contrary the previous Guidelines, online sales criteria no longer need to be equivalent to those for offline sales. However, they must not aim at preventing the effective use of the internet by the buyer.
  • The requirement that distributors must have an offline shop remains permissible, as does the requirement of a minimum sales volume in offline sales.
3.2.3. Clarifications regarding resale price maintenance

Pursuant to Art 4 lit a VBER 2022, resale price maintenance ("RPM") remains a hardcore restriction. This does not extend to the imposition of maximum sale prices and (non-binding) recommended prices, which continue to be exempted. The new Guidelines however provide some clarifications that are relevant for the application of the prohibition of RPM:

  • The setting of minimum advertised prices is regarded as indirect RPM and therefore constitutes a hardcore restriction under Art 4 lit a VBER 2022;
  • The imposition of fixed or minimum sale prices by providers of online intermediation services for transactions which they arrange is also qualified as RPM;
  • For the first time, the Guidelines provide guidance on the fulfilment of contracts by third parties, for example the fulfilment of individual orders by a customer on the basis of a framework agreement concluded with a supplier. If the supplier choses the fulfilment partner, the supplier may determine the sales price charged by the fulfilment partner without this being deemed RPM. On the other hand, the arrangement may be deemed RPM if the customer chooses the fulfilment partner.

In exceptional cases, RPM may be justified by efficiencies. In addition to the examples already contained in the old Guidelines (product launch, coordination of advertising campaigns, enabling additional customer service), RPM may also be justified in order to prevent individual distributors from using the product for loss-leading offers which are detrimental to the brand. However, the burden of proof for demonstrating that the criteria individual exemption are met rests with the supplier. These criteria have been proven difficult to prove in practice.

3.3. Changes to grey clauses

3.3.1. More flexibility for the duration of non-competition clauses

Among the VBER's most important rules in practice is the grey clause of Art 5(1)(a). Pursuant to this provision, non-compete obligations (i.e., exclusivity in favour of the supplier) only benefit from exemption if are limited to a maximum duration of five years.

According to the new Guidelines, tacit extensions of non-compete obligations beyond five years may benefit from exemption if the buyer can effectively terminate or renegotiate the contract after five years. The notice periods granted for and the costs associated with termination must be reasonable and allow for an effective change of supplier.

3.3.2. No exemption for wide price parity clauses employed by online platforms

Price parity clauses imposed by online platform were generally regarded as benefiting from exemption under the VBER 2010. The VBER 2022 now exclude so-called "wide" price parity clauses, i.e. clauses which induce users which offer their services on the platform not to sell at more favourable conditions on other platforms, from exemption. In contrast, "narrow" price parity clauses, which prevent users from offering more favourable conditions for direct sales of their goods or services, continue to benefit from exemption.

4. Outlook

The VBER 2022 increases the scope for structuring distribution relationships. In particular, it provides additional flexibility for agreements on territorial and customer restrictions and non-competition clauses. The new VBER however provides for stricter rules than its predecessor the area of online sales, and in particular for online marketplaces - an area which has been in the focus of the competition authorities for a long time.

Manufacturers and buyers along the supply chain are in any case well advised to review their existing contracts for future legal compliance and at the same time evaluate whether the VBER 2022 can open up advantages for their own distribution model.


DORDA confirmed its top rankings in the recently published Chambers Europe Guide 2022

In Chambers' new addition to the guide, Healthcare & Life Sciences, as well as Corporate/M&A, Dispute Resolution and TMT: IT DORDA was able to achieve the top ranking of Band 1.


With the appointment of two Counsel, DORDA starts the new business year

Andreas Seling and Philip Exenberger are promoted to Counsel for DORDA.


DORDA advises Netrisk Group on the acquisition of durchblicker

Led by M&A-expert Christian Ritschka, DORDA's Digital Industries Group assists on another important takeover in the Tech-Sector.