On 16 October 2024 we presented our arguments in the matter of the Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 21 September 2023 — Beevers Kaas BV v Albert Heijn België NV and Others, other party: B.A. Coöperatieve Zuivelonderneming Cono
(Case C-581/23, Beevers Kaas) (C/2023/1435)
Applicant: Beevers Kaas BV
Defendants: Albert Heijn België NV, Koninklijke Ahold Delhaize NV, Albert Heijn BV, Ahold België BV
Other party: B.A. Coöperatieve Zuivelonderneming Cono
The questions referred were as follows:
1. Can the parallel imposition requirement laid down in Article 4(b)(i) of Commission Regulation (EU) No 330/2010 (1) of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices be regarded as met, and can a supplier who satisfies the other conditions laid down in Regulation (EU) No 330/2010 therefore legitimately prohibit active sales by one of its buyers into a territory for which one other buyer has been exclusively assigned, solely on the basis of the finding that the other buyers do not actively sell into the territory? In other words: is the existence of an agreement prohibiting active sales between those other buyers and the supplier adequately proved merely on the basis of the finding that those other buyers do not actively sell into the exclusively allocated territory?
2. Can the parallel imposition requirement laid down in Article 4(b)(i) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices be regarded as met, and can a supplier who satisfies the other conditions laid down in Regulation (EU) No 330/2010 therefore legitimately prohibit active sales by one of its buyers into a territory for which one buyer has been exclusively assigned, where the supplier receives the acceptance of its other buyers only if and in so far as they show signs of actively selling into the territory thus exclusively allocated? Or, on the contrary, must such acceptance have been received from each of the supplier’s buyers, irrespective of whether those buyers show signs of actively selling into the exclusively allocated territory?
Here are our arguments:
This case concerns the conditions under which an exclusive distributor is protected from active sales by other buyers of the same supplier.
In summary, we have demonstrated that:
- The preliminary questions are irrelevant because there is no requirement for parallel imposition under the Regulation.
- Parallel imposition of an active sales ban can be inferred from the parties' conduct.
- Acceptance of a sales ban can be obtained when the buyer begins actively selling in the exclusive territory, even if this occurs later.
More detailed analysis:
The referring judge asks:
- How must the requirement of parallel imposition be proven to benefit from the Block Exemption?
- When should acceptance of an active sales ban in the exclusive territory be obtained?
Parallel Imposition
The assumption that "parallel imposition" is a condition for an exclusive distribution relationship is incorrect, as the Regulation does not impose such a requirement. This is merely a consequence of the protection afforded to exclusive distributors.
Three elements support this:
- The text of the Regulation allows restrictions on active sales in an exclusive territory but does not require a blanket ban on all active sales.
- The Block Exemption aims to protect the investments of exclusive distributors from free-riding by other buyers. If a buyer does not intend to actively sell in the exclusive territory, a sales ban is unnecessary.
- The 2010 Guidelines might suggest broad protection, but the European Commission does not specify how such protection must be implemented, leaving the method to the supplier's discretion.
Proof of Parallel Imposition
The referring court must consider the principles of effectiveness and the presumption of innocence when determining how to prove parallel imposition. These principles were applied in the Super Bock case and are even more relevant here.
The current case differs as it concerns an exclusive distribution agreement, which protects investments and benefits competition. As such, the exclusive distributor should not bear a heavier burden of proof than a competition authority.
Evidence of parallel imposition could include the absence of active sales by other buyers or other circumstantial evidence indicating a sales ban.
Timing of Acceptance of a Sales Ban
The moment when acceptance of a sales ban is obtained is irrelevant as long as the exclusive distributor is protected when another buyer begins actively selling in the exclusive territory.
In the Super Bock case, the central question was whether there was an agreement harmful to competition. Here, the question is whether an exclusive distributor is sufficiently protected. The answer depends on the specific circumstances.