In its judgment of 8 May 2025 (Beevers Kaas, C-581/23), the CJEU clarified one of the requirements for an exclusive distribution agreement to be exempted from the general prohibition of anti-competitive agreements under the EU Commission Regulation No 330/2010 on vertical agreements (in force until 31 May 2022, and applicable in the proceedings before the referring court). The judgment also deals with the delicate issue of proving the fulfilment of the required condition. This regulation has now been replaced with Regulation 2022/720, but the issues at stake remain substantially the same.
Facts and legal context
Beevers Kaas is the exclusive Belgian distributor of Beemster cheese, which is purchased from Cono, a producer based in the Netherlands. Albert Heijn companies, active in the Belgian and Dutch supermarket sectors, buy Beemster cheese produced by Cono for markets outside Belgium and Luxembourg. However, according to Beevers Kaas, Albert Heijn companies resell such Beemster cheese products in Belgium despite knowing that Cono and Beevers Kaas are bound by an exclusive distribution agreement. This would constitute a breach of the Belgian statutory prohibition of unfair competition on the part of Albert Heijn companies.
Before the Court of Appeal in Antwerp, the parties disagree on whether the exclusive distribution agreement between Beevers Kaas and Cono complies with competition law, and more specifically with the conditions laid down in Article 4(b)(i) of Regulation No 330/2010. This regulation applies Article 101(3) TFEU to vertical agreements by exempting (from the general prohibition of anti-competitive agreements in Art. 101(1) TFEU) well-defined categories of agreements, provided that various conditions are met. If an agreement is not exempted by category, its compatibility with Article 101(1) must be examined individually.
The hypothesis here at stake is that of an exclusive distributorship, whereby the distributor is granted a resale exclusivity in a territory (or with regard to certain customers). This involves a restriction imposed by the principal on the other buyers, preventing them from reselling the products into the territory (or to the customers) allocated to the distributor. Such a scheme is not per se exempted from the general prohibition, except (essentially) if the restriction is limited to active sales, i.e. the prohibition of actively reselling the products into the exclusive territory (or to the exclusive customer group) reserved to the principal or allocated by them to another distributor (Article 4(b)(i) of the Regulation). This rule is essentially the same as in Article 4(b)(i) of Regulation 2022/720, which has been in force since 1 June 2022.
The parallel imposition requirement under Regulations 330/2010 and 2022/720
The particular issue discussed between the parties is whether the litigious exclusive distribution agreement between Beevers Kaas and Cono meet the conditions of the so-called parallel imposition requirement. Under this requirement, labelling an agreement as exclusive does not make it actually exclusive under competition law. This means that the exclusive distributor must be protected against active selling into its territory (or to its customer group) by all other buyers (distributors) of the principal within the EU (para. 51 of the 2010 Guidelines). The new regulation explicitly requires such parallel imposition for a distribution system to qualify as exclusive (Article 1(1)(h); para. 219 in fine of the 2022 Guidelines).
According to the Advocate General’s opinion (paras. 27-55), this requirement was implied by Regulation 330/2010. The CJEU endorsed this view explicitly (para. 39).
Evidence of the parallel imposition requirement
In addition to this substantial issue, the judgment addresses how this condition can be fulfilled in practice when there is no written agreement within the distribution network.
The two questions referred by the Belgian court to the CJEU essentially concern the proof of the parallel imposition: is it proven by merely finding that the other distributors are not actively selling into the exclusively allocated territory, or is acquiescence of some kind required to establish their agreement? For what period is the regulatory exemption granted when there is no prior written agreement on the matter?
According to the CJEU, the existence of an ‘agreement’ whose object is to restrict active sales in an exclusive territory, may be established not only by means of direct evidence but also on the basis of objective and consistent indicia, where it may be inferred with sufficient certainty that the principal invited its other distributors not to make such sales in that territory and that the latter, in practice, acquiesced to that invitation (paras. 40-46). The invitation and the acquiescence must be established separately (paras. 48-56).
The first ruling is therefore that under Article 4(b)(i) of Regulation No 330/2010, where a principal has allocated an exclusive territory to one of its distributors, the mere finding that the other buyers of that principal do not engage in active sales in that territory is not sufficient to establish the existence of an agreement between that principal and those other buyers concerning the ban on active sales in that territory.
Regarding the exemption period, the CJEU ruled that the benefit of the exception is granted for the period for which it is shown that there is acquiescence by a principal’s buyers to the principal’s invitation not to make active sales in the exclusive territory concerned.
Key takeaway : document the prohibition of active sales in writing, as agreed in the network
In practice, these two rulings are equally important for the previous and present regulations : (i) exclusivity in a distribution agreement must be completed by corresponding active sales restrictions throughout the network, and (ii) if such restrictions do not already exist in writing, it is important to document (a) an invitation by the principal to comply with the restrictions, and (b) the acquiescence thereto by the other distributors. Otherwise, compliance with the exemption by category from the general prohibition of anti-competitive agreements will not be possible. The agreement will then require an individual assessment and may be subject to weaker enforcement against parallel traders, depending however on the circumstances (e.g. IP rights issues, specific unlawful or unfair practices, etc.).
For any questions or assistance, please reach out to our Intellectual Property Team | IP@simontbraun.eu – +32 (0)2 543 70 80
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