Press Release 07/2023
30 June 2023

The Court of Justice of the European Union (CJEU) issued a judgement that points that the Super Bock's exclusive distribution agreements in which it fixed, inter alia, minimum resale prices may be contrary to competition law. 

The AdC sanctioned, in July 2019, Super Bock, a director and a manager of the company to pay fines totalling more than €24 million for fixing minimum prices and other transaction conditions applicable to the resale of its products to hotels, restaurants and cafes (HORECA channel), for more than ten years (2006-2017).  

The CJEU replied to a request for a preliminary ruling made by the Lisbon Court of Appeal (TRL), which addressed several questions regarding the application of Article 101(1) TFEU, in particular the scope of the concept of "agreement", the standard of proof for the existence of an "agreement", and the effect on trade between Member States.  

The CJEU ruled that “Article 101(1) TFEU must be interpreted as meaning that there is an ‘agreement’ where a supplier imposes on its distributors minimum resale prices of the products that it markets, if the imposition of those prices by the supplier and compliance with them by the distributors reflects the expression of the concurrence of wills of those parties. That concurrence of wills may be shown from the terms of the distribution contract at issue, where it contains an express invitation to comply with minimum resale prices or authorises, at the very least, the supplier to impose those prices, as well as from the conduct of the parties and, in particular, from any explicit or tacit acquiescence on the part of the distributors to an invitation to comply with minimum resale prices”.

In this ruling, issued on June 29, the Court further clarified that Article 101(1) TFEU “must be interpreted as meaning that the existence of an ‘agreement’ between a supplier and its distributors, may be established not only by means of direct evidence, but also on the basis of objective and consistent indicia from which the existence of such an agreement may be inferred”.

Finally, the CJEU rules that “a vertical agreement fixing minimum resale prices covers almost the entirety, but not all, of the territory of a Member State does not prevent that agreement from being capable of affecting trade between Member States”.

The CJEU's ruling is in line with the approach taken by the AdC in its sanctioning decision.

Following the guidelines issued by the CJEU and taking into account the factual evidence provided by the Competition, Regulation and Supervision Court (TCRS), it is now up to the TRL to determine whether, given the specific factual evidence, the agreements in question are likely to constitute an infringement of competition law.

The TCRS, in a ruling issued in October 2021, confirmed the infraction sanctioned by AdC, fully confirming the amount of the fine imposed.