The parallel imposition requirement of Article 4(b)(i) of Regulation No. 330/2010

On 8 May 2025, the Court of Justice of the European Union (“CJEU”) rendered its judgment in Beevers Kaas and ruled in line with the opinion of Advocate General Medina (“AG Medina”).[1] The ruling emphasizes the impact of exclusive distribution agreements on the supplier’s other, non-exclusive buyers. Specifically, the CJEU provides clarity on Article 4(b)(i) of Regulation No. 330/2010 (“Vertical Block Exemption Regulation 2010”) and the existence of the parallel imposition requirement. This requirement obliges a supplier to protect an exclusive distributor against active sales in its exclusively allocated territory by the supplier’s other buyers. If the supplier has not complied with this requirement the relevant distribution agreement cannot make use of the exemption of the application of article 101 (1) the Treaty of the Functioning of the European Union (“TFEU”). Even though the Vertical Block Exemption Regulation 2010 has been replaced by Regulation No. 2022/720 (“Vertical Block Exemption Regulation 2022”), the outcome of the judgment is still relevant as the parallel imposition requirement has now been codified in the latter legislation.

The facts of the matter 

Distributor Beevers Kaas B.V. (“Beevers Kaas”) and producer B.A. Coöperatieve Zuivelonderneming Cono (cooperative dairy company, “Cono”) have entered into an exclusive distribution agreement in regard to the distribution of Beemster cheese in Belgium and Luxembourg. The Albert Heijn companies, which are among the largest supermarket chains in the Netherlands and Belgium, initially purchased Beemster cheese produced by Cono for sales outside of these countries. However, they expanded their sale of Beemster cheese to Belgium by buying the product from Cono in the Netherlands and distributing it in their Belgian stores. According to Beevers Kaas, the Albert Heijn companies knowingly infringed Beevers Kaas’ exclusivity rights as provided by the exclusive distribution agreement with Cono.

Preliminary questions

This led to legal proceedings about the interpretation of Article 4(b)(i) of the Vertical Block Exemption Regulation 2010. Exclusive distribution agreements that restrict the active sales into an allocated territory reserved to the supplier or another buyer may be exempted from the cartel prohibition in Article 101(1) TFEU if all requirements are met. To clarify the parties’ doubts about the Article’s requirements, the Court of Appeal in Antwerp referred the following preliminary questions to the CJEU:

1. Is the parallel imposition requirement in Article 4(b)(i) of the Vertical Block Exemption Regulation 2010 met merely because other distributors do not actively sell into the territory?; and
2. Is the parallel imposition requirement in Article 4(b)(i) of the Vertical Block Exemption Regulation 2010 fulfilled when the supplier receives the acceptance of its other buyers only if and in so far as they demonstrate they want to actively sell into the exclusively allocated territory?

Parallel imposition requirement

Before the implementation of the Vertical Block Exemption Regulation 2022, the supplier’s obligation to protect exclusive distributors against active sales in their exclusively allocated territories was not codified in EU law. AG Medina, however, argued that the parallel imposition requirement was already implicitly part of Article 4(b)(i) of the Vertical Block Exemption Regulation 2010. She found that exclusive distribution agreements are solely meaningful if the supplier is obliged to ensure the effectiveness of that exclusive allocation. This reasoning was confirmed by the CJEU, and is consistent with the European Commission’s Guidelines on Vertical Restraints and Article 1(1)(h) of the Vertical Block Exception Regulation 2022.

For Article 4(b)(i) of the Vertical Block Exemption Regulation 2010 to apply, the supplier and all its other buyers must have agreed upon the protection through an agreement in the sense of Article 101(1) TFEU. This can happen explicitly or implicitly by an invitation from the supplier to the other buyers to refrain from actively selling in the exclusive territory, when that invitation has been accepted at least tacitly. In that sense, the CJEU found that the fact that the other buyers did not actively sell in the exclusive territory of the distributor was insufficient for the fulfillment of the parallel imposition requirement. However, this circumstance may provide proof of implicit consent when the supplier has explicitly invited a buyer to comply with the active sales ban and the supplier has the means to enforce that ban upon non-compliant buyers in practice. Also, according to the CJEU, Article 4(b)(i) of the Vertical Block Exemption Regulation 2010 can only be invoked for the period of time for which there is proof of the invitation and (implicit) acquiescence. 

Key takeaways from the ruling