ECJ: Minimum prices and Prohibition of Cartels

Aug 4, 2023 Benn-Ibler Rechtsanwälte

The European Court of Justice (hereinafter ECJ) has clarified its case law on the concept of ‘agreement’ under Article 101 of the Treaty on the Functioning of the European Union (TFEU).

The initial facts of the case were as follows: The Portuguese market for bottled beer and water is mainly served by Super Bock, a beverage distributor. Super Bock entered into exclusive distribution agreements with independent distributors to distribute their beverages to hotels, cafés, and restaurants. These distributors sell beverages throughout most of Portugal. In certain areas (a number of large cities and islands), Super Bock distributes its products directly. Super Bock laid down the terms and conditions that the distributors would have to comply with in their resale activities. Minimum resale prices were also set by Super Bock. These were provided as monthly lists. As a rule, the distributors complied with these lists. They were also subject to a system of control and monitoring by Super Bock.

The referring court wanted to know whether this was an `agreement’ which infringed the ban on cartels under Article 101 TFEU.

The ECJ’s ruling was as follows:

An ‘agreement’ requires a common intention to behave in a certain way on the market. Purely unilateral actions by one of the parties to an exclusive distribution agreement do not fall within this category. However, an apparently unilateral act or conduct may constitute an agreement if it reflects a common intention.

There is an agreement if, as in the original proceedings, the distributors also adhere to the minimum prices. Although they complained to Super Bock about the prices set, an agreement on prices could be reflected in the fact that they did not demand different prices on their own initiative. Consent by the distributors may therefore also be based on tacit agreement. Consent on the part of the distributors may therefore also be implied.

ECJ C-211/22 (29.06.2023)