Good cheese in a dog skin bag: contractual exclusivity fails without clear acceptance from other distributors

In Case C‑581/23, Beevers Kaas, [1] the exclusive distributor of Beemster cheese in Belgium, brought proceedings against the Albert Heijn companies for their alleged involvement, as third parties, in the infringement of an exclusive distribution agreement concluded with the Dutch producer Cono. Beevers Kaas claimed that Albert Heijn actively sold Beemster products in Belgium despite being aware of the existence of this agreement. The dispute raised the question of whether such exclusivity could benefit from the exemption provided under Article 4(b)(i)[2] of Commission Regulation (EU) No 330/2010[3] (the previous vertical block exemption regulation), in the absence of an explicit resale restriction imposed by Cono on other distributors.

The Court of Justice of the European Union held that, in order to benefit from the exemption provided by the Regulation, two cumulative conditions must be met: (i) the supplier must have invited its buyers (other distributors) not to carry out active sales in the exclusive territory allocated to another buyer, and (ii) those buyers must have accepted that obligation, either explicitly or tacitly. Such acceptance may be demonstrated through objective and consistent indications. The benefit of the exemption applies only for the period during which these conditions are fulfilled. According to the CJEU, the mere fact that other buyers do not carry out active sales in the exclusive territory is not sufficient to establish the existence of an “agreement” within the meaning of Article 101 TFEU. It is for the national court to assess these elements in fact.

Takeaways for drafting exclusive distribution agreements (in light of the CJEU ruling and the current vertical block exemption regulation (VBER) – Commission Regulation (EU) 2022/720)[4]:

• To benefit from the block exemption under the applicable VBER, the supplier and the exclusive distributor must ensure that the restriction on active sales into the exclusive territory or to protected customer groups is expressly and demonstrably accepted by the other authorised distributors. The passive conduct of those distributors (i.e., simply refraining from making active sales) is not sufficient to establish the existence of an agreement under Article 101 TFEU.

• This protective framework must be maintained throughout the entire duration of the exclusive distribution agreement in order for the exemption from the prohibition on restrictive agreements to remain applicable.

  
  

In practice, the emerging conclusion is that failure to meet the conditions established by the CJEU can lead to two major categories of risk: (i) incompatibility of the exclusive distribution structure with the requirements of the VBER, which may result in the agreement being classified as anticompetitive and subject to significant fines by competition authorities; and (ii) civil liability, since the failure to effectively protect the exclusive distributor’s rights may amount to a contractual breach by the supplier, potentially leading to the award of damages. Therefore, beyond careful drafting of contractual provisions, it is essential to establish a real and operational mechanism that ensures the effective enforcement of the exclusive distributor’s rights.

[1] C-581/23 Beevers Kaas BV v Albert Heijn België NV and Others 2025 ECLI:EU:C:2025:323 (CJEU, Second Chamber, 8 May 2025)

[2] Article 4(b)(i): “The exemption provided for in Article 2 shall not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object: (…)(b) the restriction of the territory into which, or of the customers to whom, a buyer party to the agreement, without prejudice to a restriction on its place of establishment, may sell the contract goods or services, except: (i) the restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer”.

[3] 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, which expired on 31 May 2022.

[4] Commission Regulation (EU) 2022/720 of 10 May 2022 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.

Easter Eggs... in the Spotlight of the Romanian Competition Council

Easter Eggs

As Romanians gear up for the Easter break, eggs are once again in high demand — but this year, eggs are drawing some other kind of attention. Earlier today, the Romanian Competition Council (RCC) issued a public warning[1] following statements made by egg producers who announced an expected price increase ahead of the holidays, citing various pressures such as cost constraints and the tax unpredictability in Romania.

While the reasons invoked may sound familiar, the RCC made it clear: such public declarations, especially when made collectively or through industry associations, can be considered facilitating practices under competition law. In other words, even without a formal agreement, these announcements may reduce uncertainty among competitors and amount to a concerted practice — a serious antitrust concern.

The RCC’s warning is a timely reminder for all market players: public price signalling can lead to investigations and fines, especially in periods of predictable demand spikes like Easter. Businesses, particularly in sectors with sensitive pricing and seasonal dynamics, should avoid any public communication that could be interpreted as coordinating with competitors.

Beyond eggs, the message is clear and widely applicable — from retailers to manufacturers in all industries. As the RCC reinforces its proactive stance, companies should ensure internal compliance protocols are robust and that communication — whether through press releases, interviews, or social media — does not cross the line into price coordination.

So this Easter, while consumers hunt for the best deals, the competition authority will be on the lookout too.

[1] The document may be found here: https://www.consiliulconcurentei.ro/wp-content/uploads/2025/03/Atentionare-mar-2025.pdfntent/uploads/2025/03/Atentionare-mar-2025.pdf

Foreign Direct Investments in Romania: What Does the New Draft Guidance on Notifications, Soon to Be Adopted by the Competition Council, Clarify?

With some delay (but, we’d say, not too late), we have finally taken the time to review the draft of the new guidance set to be adopted by the Competition Council (“Draft Guidance”).[1] We went straight to the point and selected what seemed clear and immediately impactful. Here’s what we took from the document.

Determining the Investment Value in Acquisition Transactions

In the context of acquisition transactions, correctly determining the investment value is essential for the purpose of foreign direct investment notification. The Draft Guidance sets out criteria for this assessment, providing a comprehensive approach for various specific scenarios.

1. Acquisition of Participation Interests

When an investment is made by acquiring shares or equity interests, its value is determined based on the price paid for the securities and/or the capital provided by the investor. This is the basic rule under Article 4(1)(a) of the Draft Guidance.

2. Financing the Acquisition and Its Impact on Investment Value

If the investor obtains financing for the acquisition, either through a loan or a financing agreement, the investment value includes not only the transaction price but also the total loan amount and accrued interest (Article 4(4)). This aspect is crucial to avoid underestimating the investment and to reflect the full financial commitment involved.

3. Impact of Earn-Out Mechanisms on Investment Value

In many transactions, the final purchase price is not fixed but depends on certain performance conditions or future financial results. This mechanism, known as earn-out, must be taken into account when determining the investment value. According to Articles 4(7) and (8), if an investment is carried out in multiple stages or includes conditional financial commitments, the total investment value will also reflect these amounts.

4. Multi-Jurisdictional Transactions and Allocating Investment Value

For acquisitions involving multiple jurisdictions, determining the investment value for the Romanian component can be complex. Article 4(9) states that if the price allocated to the Romanian entity or assets is not separately specified, the valuations provided by the parties will be used. Otherwise, the total investment value will be considered the overall value of the multi-jurisdictional transaction.

Conclusion

Determining the investment value is a process that requires careful consideration of all financial components involved. Whether it concerns the acquisition of participation interests, the use of financing, the inclusion of earn-out mechanisms, or multi-jurisdictional transactions, the Draft Guidance provides a clear framework for assessing this value. A proper understanding of these aspects is essential for investors and their advisors in making informed decisions and ensuring compliance with regulatory requirements.

[1] Draft Guidelines issued in application of Art. (5) of Government Emergency Ordinance no. 46/2022 on measures implementing Regulation (EU) 2019/452 of the European Parliament and of the Council of March 19, 2019 establishing a framework for the examination of foreign direct investments in the Union and amending and supplementing Competition Law no. 21/1996, available here: https://www.consiliulconcurentei.ro/wp-content/uploads/2025/02/Instructiuni_CEISD_11.02.2025.pdf