ECJ clarifies requirements for bans on active sales in exclusive distribution

In its judgement of 8 May 2025 (ECJ, judgement of 8 May 2025, C-581/23), the European Court of Justice specified key requirements for the admissibility under antitrust law of sales bans in the context of exclusive distribution systems. A supplier may prohibit its distributors from actively selling in a territory exclusively allocated to another distributor if it has previously informed its other distributors sufficiently about the existence and protection of the exclusive territories and the distributors have agreed to the restriction expressly or by implied behaviour.

Background to the decision

The decision was based on a legal dispute between the company Beevers Kaas and the supermarket chain Albert Heijn. Cono, the manufacturer of "Beemster cheese", had granted Beevers Kaas the exclusive distribution rights for Beemster cheese in Belgium. Other purchasers of the cheese refrained from actively selling in Belgium on the basis of this exclusive distribution agreement. However, Albert Heijn purchased Beemster cheese directly from Cono and subsequently sold it in Belgium - even though Albert Heijn was aware of the exclusive distribution agreement between Beevers Kaas and Cono. Beevers Kaas saw this as a breach of the exclusive distribution agreement, while Albert Heijn argued that Beevers Kaas and Cono were trying to enforce a sales ban that was illegal under antitrust law.

Legal context

According to the version of the Vertical Block Exemption Regulation (Regulation (EU) 330/2010) valid until 2022, on which the ECJ's decision is still based, distributor-side restrictions on active sales in a territory or to a customer group were only exempt from the ban on cartels if the respective territories or customer groups were exclusively allocated to an exclusive distributor (Art. 4(b)(i) VBER 2010). “Active sales" refers to targeted sales measures such as advertising or sales promotions that are tailored to specific customers or regions. However, according to the EU Commission's 2010 guidelines, a permissible restriction of active sales in exclusive territories or to exclusive customer groups only existed if the supplier had also protected the exclusive distributor from active sales in the exclusive territory by other distributors.

The new VBER 2022/720 has been in force since 1 June 2022, in which the EU Commission now expressly prescribes this protection obligation (see Art. 1(1)(h) VBER 2022/720). The ECJ judgement is therefore also relevant for the interpretation of the new VBER and in particular for the statutory exemption from bans on active sales in exclusive territories and to exclusive customer groups pursuant to Art. 2 and 4(b)(i) VBER 2022/720.

Key statements of the ECJ

In its decision, the ECJ confirms that the mere (contractual) allocation of an exclusive territory or an exclusive customer group to a particular distributor is not sufficient for a ban on active sales in favour of the exclusive distributor to be exempted from the ban on cartels. Rather, what is required is a provable agreement between the supplier and its other distributors, according to which they refrain from active sales in the exclusively allocated territory or to the exclusively allocated customer group.

Such an agreement is deemed to exist if

• the distribution agreements of the non-exclusive distributors expressly prohibit active sales in the territory or to the customer group allocated exclusively to the exclusive distributor, or
• the non-exclusive distributors have expressly or tacitly agreed, at the request of the supplier, to abide by a ban on active sales in exclusively assigned territories or to exclusively assigned customer groups.

According to the ECJ, the supplier's request can take the form of a notification, a contractual clause or a corresponding reference in the supplier's general terms and conditions, for example.

According to the ECJ, the mere fact that other distributors do not operate in an exclusively allocated territory is not in itself sufficient for the assumption of a corresponding agreement or consent. Nevertheless, such behaviour could constitute tacit consent on the part of distributors to respect the protection of an exclusive territory, provided that there is a corresponding request from the supplier and suitable means of monitoring and enforcing the prohibition.

The ECJ also clarified that the exception from a prohibited hardcore restriction within the meaning of Art. 4(b)(i) VBER 2010 (now Art. 4(b)(i) VBER 2022/720) only applies for the period in which both the supplier's request to respect the protection of an exclusive distributor and the distributors' consent can be proven.

Implications for practice

The (contractual) allocation of exclusive territories or customer groups to individual distributors does not automatically justify the imposition of a ban on active sales in these exclusive sales territories or to these customer groups for other distributors. Rather, provable agreements between the parties involved are required if the exclusive territories or exclusive customer groups are to be respected through a ban on active sales. Suppliers must ensure that all distributors in their distribution system are not only informed about the existence of exclusively allocated territories or customer groups, but also expressly agree to the associated active sales restrictions. Ideally, this should be done contractually in order to facilitate proof.

Companies should therefore not only review and, if necessary, adapt their distribution agreements, but also introduce internal measures to monitor and enforce the sales ban to protect exclusive territories or exclusive customer groups. Failure to do so may result in a violation of the cartel prohibition under Art. 101 TFEU / Section 1 of the German Act Against Restraints of Competition (GWB).

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