Opinion of the Advocate General — ECLI:EU:C:2025:5
Date: 2025-01-09
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-581/23 – 1 
Case C-581/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 September 2023 
Referring court:  
Hof van beroep te Antwerpen (Belgium) 
Date of the decision to refer:  
13 September 2023 
Appellant:  
Beevers Kaas BV 
Respondents:  
Albert Heijn België NV 
Koninklijke Ahold Delhaize NV 
Albert Heijn BV 
Ahold België BV 
Intervener: 
B.A. Coöperatieve Zuivelonderneming Cono 
  
Subject matter of the main proceedings 
The dispute in the main proceedings concerns the appeal brought against the 
judgment of 9 July 2021 of the President of the ondernemingsrechtbank 
Antwerpen, afdeling Antwerpen (Companies Court, Antwerp, Antwerp Division) 
in proceedings for interim measures, dismissing as unfounded the action for an 
injunction brought by Beevers Kaas BV under Article VI. 104 of the Wetboek van 
economisch recht (Code of Economic Law) of 28 February 2013 for alleged third-
party liability of the respondents for breach of contract. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-581/23 
 
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Subject matter and legal basis of the request 
Request for a preliminary ruling under Article 267 TFEU on the interpretation of 
Article 4(b)(i) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on 
the application of Article 101(3) of the Treaty on the Functioning of the European 
Union to categories of vertical agreements and concerted practices, which 
contains the parallel imposition requirement. By its questions, the referring court 
seeks to ascertain whether the exclusive distribution agreement at issue in the 
main proceedings, which is a typical example of a vertical agreement within the 
meaning of Regulation (EU) No 330/2010, meets the parallel imposition 
requirement, under which the supplier is required to protect its exclusive 
distributor from active selling into the exclusively allocated territory by all its 
buyers within the European Economic Area. 
Questions referred for a preliminary ruling 
(1) Can the parallel imposition requirement laid down in Article 4(b)(i) of 
Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of 
Article 101(3) of the Treaty on the Functioning of the European Union to 
categories of vertical agreements and concerted practices be regarded as met, and 
can a supplier who satisfies the other conditions laid down in Regulation (EU) 
No 330/2010 therefore legitimately prohibit active sales by one of its buyers into a 
territory for which one other buyer has been exclusively assigned, solely on the 
basis of the finding that the other buyers do not actively sell into the territory? In 
other words: is the existence of an agreement prohibiting active sales between 
those other buyers and the supplier adequately proved merely on the basis of the 
finding that those other buyers do not actively sell into the exclusively allocated 
territory? 
(2) Can the parallel imposition requirement laid down in Article 4(b)(i) of 
Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of 
Article 101(3) of the Treaty on the Functioning of the European Union to 
categories of vertical agreements and concerted practices be regarded as met, and 
can a supplier who satisfies the other conditions laid down in Regulation (EU) 
No 330/2010 therefore legitimately prohibit active sales by one of its buyers into a 
territory for which one buyer has been exclusively assigned, where the supplier 
receives the acceptance of its other buyers only if and in so far as they show signs 
of actively selling into the territory thus exclusively allocated? Or, on the contrary, 
must such acceptance have been received from each of the supplier’s buyers, 
irrespective of whether those buyers show signs of actively selling into the 
exclusively allocated territory? 
Provisions of European Union law relied on 
Article 101(1) and (3) TFEU 
BEEVERS KAAS 
 
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Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of 
Article 101(3) of the Treaty on the Functioning of the European Union to 
categories of vertical agreements and concerted practices, Article 4(b)(i) 
Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of 
Article 101(3) of the Treaty on the Functioning of the European Union to 
categories of vertical agreements and concerted practices, Article 1(1)(h) 
European Commission Guidelines on Vertical Restraints (OJ 2010 L 130, p. 1) 
(‘the 2010 Guidelines’), points 25(a) and 51 
European Commission Guidelines on Vertical Restraints (OJ 2022 C 248/1, p. 1) 
(‘the 2022 Guidelines’), point 122 
Provisions of national law relied on 
Code of Economic Law of 28 February 2013 (‘the WER’), Article VI. 1 and 
Article VI. 104 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant, Beevers Kaas BV, is the exclusive distributor in Belgium of 
Beemster cheese, which it buys from the producer B.A. Coöperatieve 
Zuivelonderneming Cono (‘Cono’). Since 1 January 1993, there has been an 
exclusive distribution agreement between the appellant and Cono, Article 1.3 of 
which provides that the appellant’s exclusivity rights extend to all sales of 
Beemster cheeses to buyers established in Belgium and Luxembourg (‘the 
exclusive distribution agreement’). 
2 The respondents are active in the supermarket sector in Belgium and the 
Netherlands. They are buyers of Beemster cheeses produced by Cono for markets 
outside Belgium and Luxembourg. 
3 According to the appellant, Cono’s undertaking, set out in Article 4.1 of the 
exclusive distribution agreement, not to supply cheese under the trade mark 
‘Beemsterkaas’ to third parties in Belgium or Luxembourg during the term of the 
agreement constitutes a prohibition on active sales, which the respondents dispute. 
4 Since the appellant takes the view that the respondents are infringing honest 
market practice by carrying out activities in Belgium that have the direct or 
indirect effect of infringing the appellant’s exclusivity rights under the exclusive 
distribution agreement, even though the respondents know that Cono is bound by 
that agreement, the appellant sought an injunction before the court at first instance 
under Article VI. 104 of the WER for third-party liability for breach of contract, 
which was dismissed by judgment of 9 July 2021. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-581/23 
 
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5 On 30 August 2021, the appellant brought an appeal against that judgment before 
the referring court. 
6 Cono intervened voluntarily in those proceedings on 17 December 2021. 
The essential arguments of the parties in the main proceedings 
7 First of all, the respondents dispute the content and scope of the exclusive 
distribution agreement, arguing that the exclusive distribution agreement does not 
require Cono to protect the appellant from active sales by other distributors, 
meaning that there could be no breach of contract for which they might be liable 
as third parties. 
8 The appellant submits that it is clear from Articles 1.3 and 4.1 of the exclusive 
distribution agreement that Cono and the appellant intended to protect the 
appellant, as the exclusive distributor in Belgium and Luxembourg, from active 
sales by Cono or other distributors. In addition, the appellant, having become 
aware of the respondents’ plans to operate supermarkets in Belgium, drew Cono’s 
attention, by letter of 20 January 2011, to Cono’s obligation to impose on its other 
customers, including the respondents, a prohibition on actively selling the 
products covered by the exclusive distribution agreement in Belgium or 
Luxembourg. By letter of 14 February 2011, Cono drew the respondents’ attention 
to the existence of the prohibition on active sales and to its obligation to impose it 
on its other buyers. Lastly, it is apparent from the respondents’ emails to Cono 
that they acknowledged the prohibition on resale. 
9 The respondents consider that the exclusive distribution agreement does not 
satisfy the conditions of competition law that would justify a prohibition on resale. 
In this respect, they refer to Article 101(1) and (3) TFEU (according to which, 
respectively, agreements restricting competition are prohibited and this 
prohibition may be declared inapplicable in the case of agreements between 
undertakings which contribute to improving the production or distribution of 
goods) and to Regulation (EU) No 330/2010 (the Vertical Block Exemption 
Regulation), according to which certain hardcore restrictions in a vertical 
agreement cannot benefit from an exemption. For instance, there is no exemption 
for vertical agreements, referred to in Article 4(b) of that regulation, which, 
directly or indirectly, have as their object the restriction of the territory into which, 
or of the customers to whom, a buyer party to the agreement may sell the contract 
goods or services, unless such a restriction does not limit sales by the customers of 
the buyer (Article 4(b)(i)). The respondents infer from this that a restriction on 
active sales must satisfy three cumulative conditions: first, that the supplier has 
designated an exclusive distributor for a specific territory (or for a specific 
customer group), second, that sales by customers of the distributor subject to the 
active sales restriction are not limited and, third, that the exclusive distributor is 
protected by the supplier from active sales in its territory (or to its customer 
group) by all the supplier’s other buyers in the European Economic Area, a 
BEEVERS KAAS 
 
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condition known as the parallel imposition requirement. The respondents argue 
that the exclusive distribution agreement does not satisfy the latter condition. 
10 According to the appellant, Article 4(b)(i) of Regulation (EU) No 330/2010 does 
not mention the parallel imposition requirement. It disputes that the exception 
relating to the hardcore restriction applies only if those three conditions are 
satisfied. The protection by Cono from active sales in the appellant’s exclusively 
allocated territory, as provided for in the exclusive distribution agreement, is 
therefore covered by the exception provided for in Article 4(b)(i) of Regulation 
(EU) No 330/2010 and constitutes an authorised restriction of competition. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 By interim judgment of 27 April 2022, the referring court resolved the dispute 
concerning the content and scope of the exclusive distribution contract in favour 
of the appellant. In addition, it stayed the proceedings and requested the Belgische 
Mededingingsautoriteit (Belgian Competition Authority; ‘the BMA’) to submit its 
written observations on the compatibility of the exclusive distribution agreement 
with competition law. 
12 According to the BMA, the parallel imposition requirement must be met in order 
for a restriction of active sales to be legitimate. That condition must be interpreted 
in particular in the light of the concept of ‘agreement’ within the meaning of the 
competition rules, in particular Article 101 TFEU and Article IV. 1 of the WER, 
which implies that the concurrence of wills and the existence of explicit or tacit 
acquiescence to the supplier’s instructions by the distributors may be inferred 
from the conduct of the parties (actual compliance). 
13 The referring court finds that the appellant has shown that the respondents 
accepted, at least tacitly, the prohibition on active sales, but that there is no 
evidence that all the other resellers explicitly accepted that prohibition. It points 
out in that regard that neither Regulation (EU) No 330/2010 nor the 2010 
Guidelines indicate how the supplier is to communicate the prohibition on active 
sales to its other buyers, or how those buyers are to acquiesce to that prohibition. 
14 According to the BMA, the referring court could infer tacit acceptance of the 
prohibition on active sales by the other resellers from the mere fact that none of 
those resellers sells Beemster products purchased from Cono in Belgium. The 
respondents dispute that view, arguing that tacit acceptance exists only if it is 
shown that, at the time the exclusivity was granted to the appellant, Cono’s policy 
that no Beemster products purchased in the Netherlands should be actively sold in 
Belgium was communicated to all the other resellers authorised at that time and 
that each of them was required to comply with it.