On 8 May 2025, the Court of Justice of the European Union (“CJEU”) issued a preliminary ruling in case C‑581/23 (Beevers Kaas), largely upholding AG Medina’s opinion on requirements for exclusive distribution agreements, with a particular focus on the “parallel imposition requirement” under both the Old and New Vertical Block Exemption Regulations. 

The Antwerp Court of Appeal (Belgium) has referred questions to the CJEU for a preliminary ruling to clarify the competition law requirements regarding the protection of allocated exclusive territories in an exclusive distribution setup. 

The request for a preliminary ruling stems from a dispute between Belgian company Beevers Kaas, the exclusive distributor of Beemster cheese in Belgium and Luxembourg since 1993, and Albert Heijn, a major Dutch supermarket chain holding distribution rights for Beemster cheese in territories outside Belgium and Luxembourg. Both distributors maintain separate distribution agreements with Dutch cheese manufacturer Cono. Beevers Kaas has had an exclusive distribution agreement with Cono for Belgium and Luxembourg since 1993, and Albert Heijn purchased Beemster cheese from Cono primarily for the Netherlands.

When Albert Heijn expanded its activities from the Netherlands into Belgium, Beevers Kaas approached Cono and requested its confirmation that Albert Heijn would not be allowed to sell Beemster cheese in Belgium in view of the exclusive distribution rights for the Belgian territory granted to Beevers Kaas by Cono. Cono requested Albert Heijn to acknowledge Beevers Kaas‘ exclusive rights and refrain from actively selling in Belgium, but the supermarket chain responded that Albert Heijn was not contractually prohibited from selling the cheese in Belgium. When Albert Heijn started selling Beemster Case in its Belgian supermarkets, Beevers Case requested a court order for unlawful conduct in breach of its exclusive distribution rights in Belgium. 

Albert Heijn argued before the Antwerp court that the alleged (active) sales restriction for Belgium is neither contractually applicable nor enforceable under EU competition law, specifically considering the requirements set by the Vertical Block Exemption Regulation No 330/2010 (the Old VBER)[1]. The exclusive distribution agreement between Cono and Beevers Kaas had no effect on the right of Albert Heijn to sell Beemster cheese in Belgium, the supermarket chain claimed.

Legal requirements for exclusive distribution setups

The main question in the preliminary request concerns the requirements for an exclusive distribution agreement to meet the conditions for benefiting from the safe harbour in the Old VBER. Or in other words, what is required for a restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier (Cono) to another buyer (Beevers Kaas) to be lawfully and effectively imposed on other buyers (like Albert Heijn)? [2]

It is recognized under the Old VBER (as well as under the New VBER), that a supplier can impose certain restrictions on its buyers without violating the competition rules. This includes exclusively allocating a territory or a group of customers to one buyer, while restricting all its other buyers within the EU from actively selling into the exclusive territory or to the exclusive customer group allocated to this one buyer. 

Provided neither of the parties’ respective market shares on the relevant markets exceed 30%, the active sales restrictions imposed on other buyers into exclusively granted territories/customer groups can benefit from the safe harbour in Article 4(b)(i) of the Old VBER, exempting the restrictions from the prohibition on anti-competitive agreements in Article 101(1) TFEU. On the other hand, restrictions on passive sales in an exclusive distribution system are categorized as a hardcore restriction and cannot benefit from the safe harbour.[3]

As emphasized by AG Medina in her opinion of 9 January 2025 (link), for an exclusivity to be meaningful, the supplier is obliged to ensure that the exclusive distributor is protected against potential harm from active sales into the allocated territory.[4] The possibility to exempt such restrictions would be deprived of its essence if it was not accompanied by a corresponding obligation on the supplier to guarantee that the restriction of active sales is observed by other distributors. This is the core of the question at hand, reflecting the so-called “parallel imposition requirement”. Parallel imposition can be achieved by either the supplier contractually imposing an active sales ban on other buyers, or by acceptance of the active sales ban by other buyers (thus respecting the exclusive distribution right for the particular territory or customer group).

In the specific case, all Cono’s distributors had in practice refrained from selling Beemster cheese in Belgium, where Beevers Kaas was appointed as Cono’s exclusive distributor since 1993, until Albert Heijn took the position that it was not legally required to accept it. Although there was no evidence of the other distributors accepting the active sales ban in Belgium, Beevers Kaas argued that this was sufficient to infer tacit acceptance of the ban on active sales in Belgium, as it showed that all of Cono’s other distributors had accepted the ban in practice. 

On the other hand, the Dutch supermarket chain argued that in order for there to be a tacit acceptance, Beevers Kaas first had to show that the active sales ban in Belgium was communicated by Cono to all its distributors, and that each of them was required to comply with it.

The CJEU ruling

In its recent ruling (link), the CJEU largely confirms the explanation expressed in AG Medina’s  opinion. 

The CJEU holds that where a supplier has allocated an exclusive territory to one of its buyers (in this case distributors), the mere finding that other buyers of that supplier do not engage in active sales in that territory is not sufficient in itself to meet the “parallel imposition requirement”. In other words, it does not establish the existence of an agreement between that supplier and those other buyers concerning the ban on active sales in that territory, for the purpose of applying Article 4(b)(i) of the Old VBER.

Referring to the AG’s opinion, the CJEU emphasizes that allocating a territory exclusively to one distributor is necessarily accompanied by a parallel imposition on that supplier to protect the exclusive distributor from other buyers’ active sales in the territory and thus ensure the effectiveness of the granted exclusivity. 

With regard to a restriction of active sales in the exclusive territory allocated to a distributor, the CJEU holds that such a restriction may follow from the terms of the (distribution) agreements between the supplier and those other buyers who do not benefit from territorial exclusivity, that they are expressly prohibited from making active sales within a specific territory (or customer group) exclusively allocated to a distributor. 

However, in the present case, the distribution agreements concluded between Cono and its other distributors, including Albert Heijn, did not contain any such clauses prohibiting active sales into the exclusive territory allocated to Beevers Kaas.

It should therefore be considered whether (i) Cono, as a supplier, had in any other form invited its distributors not to engage in active sales in the exclusive territory allocated to Beevers Kaas, and (ii) whether these other distributors had expressly or tacitly accepted to respect the communicated prohibition. 

As examples of invitations (re i), the CJEU refers to the AG’s opinion, mentioning that this could take the form of specific communication sent by the supplier to its distributors requiring them to respect the exclusive territory, or a clause or specific mention to that effect in the supplier’s general terms and conditions, but agreed that this was insufficient if not accepted by the other distributors.

As stated above, the CJEU held that the mere finding that other distributors of Cono (but for the supermarket chain) did not engage in active sales in Beevers Kaas’ exclusive territory was not sufficient in itself to establish an invitation/agreement to that effect. The CJEU notes, however, that there is likely a relevant element to be taken into consideration when considering the possible tacit acceptance of an actual invitation not to engage in active sales on the exclusive territory. But it is clear from the judgment that acceptance – a concurrence of will - is a critical element that must be demonstrated by the supplier, even if it has been tacit.

The CJEU holds that had Cono explicitly invited the distributors to comply with the ban on active sales in Beevers Kaas’ exclusive territory, such a circumstance could have constituted proof of tacit acceptance only when Cono had taken steps to implement the ban in practice, such as imposing a monitoring system or penalties to distributors for non-compliance. 

In conclusion, the CJEU holds that suppliers running an exclusive distribution system must demonstrate that all distributors have accepted the active sales ban for the exclusive distribution system to benefit from block exemption. The mere finding that the other distributors do not engage in active sales in that territory is not sufficient to establish the existence of an agreement between that supplier and those other buyers to that effect.

Practical takeaways 

With the CJEU’s confirmation of the AG’s perspective, it is now clear that suppliers and exclusive distributors face a heavier contractual and compliance burden when carving out exclusive territories. 

This leads us to the following four key takeaways and learning points: 

1. The “parallel imposition requirement” applies to all exclusive distribution agreements: Both the Old VBER and the New VBER include a “parallel imposition requirement”, which aims at ensuring that suppliers take steps to protect exclusive distributors against active selling between their exclusive territories/customer groups.
2. Ensuring an effective ban on active sales: The “parallel imposition requirement” entails that suppliers – as well as exclusive distributors wanting protection in their allocated territory/customer group - must ensure that all distributors agree to and comply with an active sales ban. This can be ensured both explicitly by including an active sales ban in all distribution agreements (recommended) or through informal or even tacit acceptance (not recommended relying on this, as it is surrounded by legal uncertainty and issues of evidence).
3. Getting it right from the beginning to the end: The “parallel imposition requirement” must be met throughout the entire period for which exclusive distribution right is claimed by the parties. In other words, it is important to get it right from the beginning when concluding agreements on exclusive distribution with the first distributors, and to maintain the requirement through the lifetime of the exclusive distribution system. Also, if exclusive territories/customers are re-allocated at some point, this should also be reflected in the active sales restrictions in all other agreements. 

We strongly recommend that stakeholders revisit their distribution agreements to confirm compliance with both the Old VBER (for legacy contracts) and the New VBER for ongoing arrangements or contracts still to be signed.

For more information or further guidance in this area, please contact Morten Nissen, Pauline Kuipers, or Stefan Brkic.  

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[1] The Old VBER expired on 31 May 2022, and was succeeded by the Vertical Block Exemption No 2022/720 that entered into force on 1 June 2022 (the New VBER). The relevant provision, Article 4(1)(a) Old VBER, has been modified in the New VBER to allow for combining different distribution systems and appointing semi-exclusive rights, but not in relation to this exception for active sales restrictions in relation to exclusively allocated territories or customer groups.

[2] The term ‘buyer’ is, from a competition law perspective, used for an undertaking that sells goods or services on behalf of another undertaking, cf. Article 1(1)(k) in the New VBER. A buyer could therefore be a distributor, wholesaler, retailer etc.

[3] Active sales are categorized as proactive targeting of customers through direct approaches or targeted advertising, while passive sales are responses to unsolicited orders from customers.

[4] Discussed in our previous blog article (link)

 [PK1]Both the VBER and the judgment refer to ‘buyers’, which seems a broader notion than distributors.