# C_2023286EN.01000901.xml

| 14.8.2023 | EN | Official Journal of the European Union | C 286/9 |
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14.8.2023

EN

Official Journal of the European Union

C 286/9

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Judgment of the Court (Third Chamber) of 29 June 2023 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — Super Bock Bebidas, SA, AN, BQ v Autoridade da Concorrência

(Case C-211/22, (1) Super Bock Bebidas)

(Reference for a preliminary ruling - Competition - Agreements, decisions and concerted practices - Article 101 TFEU - Vertical agreements - Minimum resale prices fixed by a supplier to its distributors - Concept of ‘restriction of competition by object’ - Concept of ‘agreement’ - Proof of a concurrence of wills between the supplier and its distributors - Practice covering almost the entire territory of a Member State - Effect on trade between Member States - Regulation (EC) No 2790/1999 and Regulation (EU) No 330/2010 - Hardcore restriction)

(2023/C 286/09)

Language of the case: Portuguese

Referring court

Tribunal da Relação de Lisboa

Parties to the main proceedings

Applicants: Super Bock Bebidas, SA, AN, BQ

Defendant: Autoridade da Concorrência

Operative part of the judgment

| 1. | Article 101(1) TFEU
  must be interpreted as meaning that the finding that a vertical agreement fixing minimum resale prices entails a ‘restriction of competition by object’ may only be made after having determined that that agreement presents a sufficient degree of harm to competition, taking into account the nature of its terms, the objectives that it seeks to attain and all of the factors that characterise the economic and legal context of which it forms part. |
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1.

Article 101(1) TFEU

must be interpreted as meaning that the finding that a vertical agreement fixing minimum resale prices entails a ‘restriction of competition by object’ may only be made after having determined that that agreement presents a sufficient degree of harm to competition, taking into account the nature of its terms, the objectives that it seeks to attain and all of the factors that characterise the economic and legal context of which it forms part.

| 2. | Article 101(1) TFEU
  must be interpreted as meaning that there is an ‘agreement’, within the meaning of that article, 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. |
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2.

Article 101(1) TFEU

must be interpreted as meaning that there is an ‘agreement’, within the meaning of that article, 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.

| 3. | Article 101 TFEU, read together with the principle of effectiveness
  must be interpreted as meaning that the existence of an ‘agreement’, within the meaning of that article, 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. |
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3.

Article 101 TFEU, read together with the principle of effectiveness

must be interpreted as meaning that the existence of an ‘agreement’, within the meaning of that article, 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.

| 4. | Article 101(1) TFEU
  must be interpreted as meaning that the fact 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. |
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4.

Article 101(1) TFEU

must be interpreted as meaning that the fact 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.

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(1)  OJ C 266, 11.7.2022.

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