Inês Gouveia and Gonçalo Rosas sign article on exclusive distribution and competition before the CJEU

Inês Gouveia and Gonçalo Rosas sign the article “Exclusive Distribution and Competition – the Case of the Cheese that Divided the Market”, published in Advocatus, where they analyse a recent judgment by the Court of Justice of the European Union (CJEU) that clarifies the requirements for the validity of exclusive distribution agreements, particularly regarding restrictions on so-called "active sales".

The case concerns a dispute between Beevers Kaas, the exclusive distributor of Beemster cheese in Belgium, and the supermarket chain Albert Heijn, which was selling the product in that territory without respecting the exclusivity. The key question: can the absence of active sales by other distributors be enough to presume the existence of a tacit agreement prohibiting such sales? According to the CJEU, it cannot.

The lawyers explain that the Court requires two cumulative conditions for territorial protection to be valid under competition law:

(i) the supplier must expressly invite all other distributors to refrain from making active sales into the exclusive territory; and
(ii) those distributors must accept that invitation, either explicitly or tacitly. The mere absence of sales may serve as an indication, but it does not constitute sufficient evidence on its own.

This position of the CJEU, Inês Gouveia and Gonçalo Rosas emphasise, reinforces the notion that the legal effectiveness of exclusive distribution requires not only the contractual definition of territories but also a clear acknowledgement of the restriction by the other players in the distribution network.

The aim is to ensure that the exclusive distributor has real incentives to invest in the assigned territory, without turning the system into an artificial market partitioning tool with no associated efficiencies.

Read the full article in Advocatus.