In Part I of this series, we outlined the new legal framework for parity (or most-favoured-nation, “MFN”) obligations under the new Vertical Block Exemption Regulation (“VBER”) and the Vertical Guidelines (“VGL”).
The 2022 reform draws a clear distinction between wide and narrow parity clauses, excluding the former from the safe harbour where imposed by providers of online intermediation services (OIS), while continuing to exempt the latter in most cases.
In this second part, we turn to the practical implications. How can parity clauses be structured to remain within the safe harbour? When does an individual assessment become necessary? And what concrete lessons can be drawn from recent enforcement experience?
The first compliance step is to identify what kind of parity obligation is being proposed.
| TYPE | DESCRIPTION | SAFE HARBOUR STATUS |
| Wide parity | OIS provider prohibits business user from offering better terms on any competing online intermediation service or sales channel. | Excluded from the block exemption (Art. 5(1)(d) VBER) → requires individual assessment. |
| Narrow parity | OIS provider prohibits business user from offering better terms on its own direct channel (e.g. its own website or store). | Covered by the block exemption, subject to general conditions. |
| Hybrid / mixed parity | Combination of the above (e.g. prohibition on better terms on both own channel and some third-party sites). | Must be broken down and assessed per element; the “wide” part remains excluded. |
Accurate classification helps determine whether the clause can rely on the block exemption or whether an Article 101(1) assessment is required.
If a parity clause is to remain exempt under the VBER, its scope and operation should be narrowly defined. The following drafting techniques are commonly used in practice:
These techniques help ensure that parity clauses imposed by OIS providers achieve their commercial purpose without unduly restricting competition.
Where a wide parity obligation is imposed by an OIS provider – or where the contracting parties exceed the 30% market-share threshold – the clause must be individually assessed under Article 101(1) TFEU.
In such cases, the VGL identify key factors for analysis:
Documenting these aspects is essential for any OIS provider seeking to rely on an efficiency defence under Article 101(3).
Even narrow parity obligations, when imposed by OIS providers, may lose their protection in certain market contexts. Under Article 6 VBER, the Commission or a national competition authority may withdraw the benefit of the block exemption if similar clauses, taken together, have cumulative restrictive effects. The VGL explicitly mention that in concentrated platform markets, widespread use of narrow parity obligations by OIS providers can reduce competition between OIS and limit business users' ability to direct sales elsewhere.
OIS providers imposing (narrow) parity obligations in a concentrated market should:
Recent investigations by several national competition authorities demonstrate that parity clauses imposed by OIS providers remain on the radar. While most have focused on the online travel sector, similar issues are arising in ecommerce, digital content distribution, and mobility platforms.
In addition to public enforcement, parity obligations may expose firms to private damages claims by resellers or competitors alleging foreclosure. Companies should therefore integrate competition-law review into contract approval and compliance training processes.
A few concise “do’s and don’ts” illustrate the new landscape:
| ✅ Do | ❌ Don’t |
| Use narrow parity limited to the buyer’s own direct channels. | Impose wide across-platform parity obligations without individual assessment. |
| Keep clauses specific, time-limited and reviewable. | Include open-ended “best terms” language covering all aspects of cooperation. |
| Allow reasonable promotional flexibility. | Prohibit any deviation whatsoever, even temporary campaigns. |
| Document efficiencies and investment rationales | Rely on parity as a default clause without internal justification. |
| Monitor cumulative exposure to similar obligations across platforms. | Assume that the safe harbour applies regardless of market structure |
The 2022 reform has fundamentally revised the treatment of parity obligations imposed by OIS providers:
For suppliers, OIS providers, distributors and buyers alike, the message is clear: parity clauses can still serve legitimate business purposes, but they now require more careful calibration and documentation than before.
Parity obligations remain a useful commercial instrument — but they are no longer a “tick-box” clause that can be inserted automatically into standard distribution or platform contracts.
Under the new VBER and VGL, businesses must tailor their parity provisions to the specific competitive context, ensure transparency of purpose, and regularly review whether market conditions still justify their use.
A thoughtful compliance approach, combining legal self-assessment with internal monitoring, will be key to staying within the safe harbour — and to avoiding unpleasant surprises from competition authorities or private challengers.
This blog is part of the EU Distribution Blog Series launched by Banning Advocaten. The series follows the structure of the Vertical Guidelines and Vertical Block Exemption Regulation (VBER). New contributions are published on a regular basis.
If you have any questions about the contents of this note, please contact Minos van Joolingen, Martijn Jongmans, Sophia Wittkämper or Iris Graumans of Banning’s Competition & Regulatory Team, telephone number +31 73 692 77 52.