Judgment;Summary — ECLI:EU:C:2023:529
Date: 2023-06-29
Language of the case: Portuguese
Court formation: Third Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-211/22 – 1 
Case C-211/22 
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: 
17 March 2022 
Referring court: 
Tribunal da Relação de Lisboa (Portugal) 
Date of the decision to refer: 
24 February 2022 
Appellants: 
Super Bock Bebidas, S.A. 
AN 
BQ 
Respondent: 
Autoridade da Concorrência (Competition Authority) 
  
Subject matter of the main proceedings 
The issue to be disposed of, which is whether or not the proven facts constitute the 
infringement provided for in Article 9(1) of the Lei da Concorrência (Law on 
competition) [Lei n.º 19/2012, de 8 de maio, que aprovou o Novo Regime Jurídico 
da Concorrência (Law No 19/2012 of 8 May 2012 establishing a new legal 
framework for competition; ‘the NRJC’)] and Article 101(1) of the Treaty on the 
Functioning of the European Union (TFEU), calls for an examination first and 
foremost of whether an agreement or practice contrary to competition, within the 
meaning of those legal provisions, is present in the dispute in the main 
proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-211/22 
 
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Subject matter and legal basis of the request 
In this case, the Competition Authority accused Super Bock Bebidas, S.A., AN (a 
member of its board of directors) and BQ (the head of one of its two commercial 
departments) (‘the appellants’) of breaching competition law by committing an 
administrative infringement as defined and made punishable under 
Articles 9(1)(a) and 68(1)(a) and (b) of the NRJC. Article 9 is based on 
Article 101 TFEU, the content of which it virtually reproduces. The Tribunal da 
Concorrência, Regulação e Supervisão de Santarém (Court of Competition, 
Regulation and Supervision, Santarém, Portugal) upheld that accusation. 
The Competition Authority and the Court of Competition, Regulation and 
Supervision, Santarém, took the view that, in the distribution contracts it 
concluded with its distributors, Super Bock had put into practice, during at least 
the period from 15 May 2006 until 23 January 2017, an agreement the object of 
which was restrictive of competition. 
The Court of Competition, Regulation and Supervision, Santarém, ordered the 
appellants to pay the following fines: a fine of EUR 24 000 000 for SUPER 
BOCK BEBIDAS, S. A.; a fine of EUR 12 000 for AN; and a fine of EUR 8 000 
for BQ. 
The appellants appealed against that decision on the ground that they had not 
committed any infringement, since the respondent had not proved either that the 
conduct/agreement found to be restrictive of competition was sufficiently harmful 
or that it had anti-competitive effects, and seek to have the fines imposed on them 
cancelled or at least reduced. 
Questions referred for a preliminary ruling 
1. Does the vertical fixing of minimum prices constitute in and of itself an 
infringement by object which does not require a prior analysis of whether that 
agreement is sufficiently harmful? 
2. In order to demonstrate that the ‘agreement’ element of the infringement 
consisting in the (tacit) fixing of the minimum prices to be charged by distributors 
is present, is it necessary to show that the distributors actually charged the fixed 
prices in the case in question, in particular by direct evidence? 
3. Do the following factors constitute sufficient evidence of the commission of 
an infringement consisting in the (tacit) fixing of the minimum prices to be 
charged by distributors: i) the sending of lists containing minimum prices and 
margins for distribution; ii) asking distributors for information on the selling 
prices they charge; iii) complaints from distributors (where they consider the 
resale prices imposed on them to be uncompetitive or find that competing 
distributors do not adhere to them); iv) the existence of price-tracking mechanisms 
SUPER BOCK BEBIDAS 
 
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(as a minimum); and v) the existence of retaliatory measures (even though it has 
not been demonstrated that these have actually been applied)? 
4. In the light of Article 101(1)(a) TFEU, Article 4(a) of Regulation 
No 330/2010, the European Commission’s Guidelines on Vertical Restraints and 
the case-law of the European Union, can an agreement between a supplier and its 
distributors which (vertically) fixes minimum prices and other terms of business 
applicable to resale be presumed to be sufficiently harmful to competition, without 
prejudice to an analysis of any positive economic effects arising from such a 
practice, within the meaning of Article 101(3) TFEU? 
5. Is it compatible with Article 101(1)(a) TFEU and the case-law of the 
European Union for a judicial decision to find that the presence of the objective 
defining element of an ‘agreement’ between a supplier and its distributors is 
proved on the basis of: 
i) the fixing and imposition, by the former on the latter, on a regular, universal and 
unchanging basis during the period of the practice, of the terms of business which 
the latter must fulfil when reselling the products they acquire from the supplier, in 
particular the prices they charge their customers, principally in terms of minimum 
prices or average minimum prices; 
ii) the fact that the resale prices imposed are notified either verbally or in writing 
(via e-mail); 
iii) the fact that distributors are unable to fix their resale prices independently; 
iv) the customary and universal practice whereby the supplier’s employees ask 
distributors (by telephone or in person) to adhere to the prices indicated; 
v) the universal adherence by distributors to the resale prices fixed by the supplier 
(other than in the event of occasional disagreements) and the finding that the 
conduct of distributors on the market is generally in keeping with the terms laid 
down by the supplier; 
vi) the fact that, in order not to breach the terms laid down, distributors themselves 
often ask the supplier to tell them what resale prices to charge; 
vii) the finding that distributors frequently complain about the prices set by the 
supplier rather than simply charging other prices; 
viii) the fixing by the supplier of (reduced) distribution margins and the 
assumption by distributors that those margins correspond to the level of 
remuneration payable for their business; 
ix) the finding that, by imposing low margins, the supplier imposes a minimum 
resale price, as the distribution margins would otherwise be negative; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-211/22 
 
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x) the supplier’s policy of granting discounts to distributors on the basis of the 
resale prices actually charged by them ― the minimum price previously fixed by 
the supplier being the level of [the price of] restocks at sell-out; 
xi) the need for distributors ― in the light in many cases of the negative 
distribution margin ― to adhere to the resale price levels imposed by the supplier; 
the practice of lower resale prices is followed only in very specific circumstances 
and where the distributors ask the supplier for a further discount at sell-out; 
xii) the fixing by the supplier of, and the adherence by distributors to, the 
maximum discounts which are to be applied to the distributors’ customers, which 
has the effect of imposing a minimum resale price, as the distribution margin 
would otherwise be negative; 
xiii) the direct contact between the supplier and the distributors’ customers and the 
fixing of the terms of business subsequently imposed on distributors; 
xiv) the supplier’s intervention, on the distributors’ initiative, inasmuch as it is the 
supplier that makes the decision to apply certain trade discounts or renegotiates 
the terms of business for resale; and 
xv) the fact that distributors ask the supplier to authorise them to conclude a 
particular transaction on certain terms in order to ensure their distribution margin? 
6. Is an agreement on the fixing of minimum resale prices which exhibits the 
characteristics described above and covers almost the entire national territory 
capable of affecting trade between Member States? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union: Article 101. 
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 (OJ 2010 L 102, p. 1): 
Article 4. 
Commission notice – Guidelines on vertical restraints (SEC/2010/0411 final) 
Provisions of national law relied on 
Lei n.º 19/2012, de 8 de maio, que aprova o novo regime jurídico da concorrência, 
revogando as Leis n.os 18/2003, de 11 de junho, e 39/2006, de 25 de agosto, e 
procede à segunda alteração à Lei n.º 2/99, de 13 de janeiro (Law No 19/2012 of 
8 May 2012 establishing a new legal framework for competition, repealing Laws 
Nos 18/2003 of 11 June 2003 and 39/2006 of 25 August 2006 and amending for 
the second time Law No 2/99 of 13 January 1999): Article 9. 
SUPER BOCK BEBIDAS 
 
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Article 9(1): 
‘The following shall be prohibited: agreements between undertakings, concerted 
practices between undertakings and decisions by associations of undertakings 
which have as their object or effect the prevention, distortion or significant 
restriction of competition in all or part of the national market, in particular those 
which consist in: 
a) directly or indirectly fixing purchase or selling prices or other trading 
conditions; […]’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 Super Bock manufactures and markets beverages, more specifically beers, bottled 
waters (still and sparkling), soft drinks, iced teas, wines, sangrias and ciders, 
which it distributes in Portugal in two sectors, the grocery sector (also known as 
the off-trade sector) and the HORECA sector (also known as the on-trade sector). 
2 As regards the grocery (off-trade) sector, which covers purchases made in 
hypermarkets, supermarkets, wholesalers’ outlets, traditional shops and discount 
stores for consumption at home, Super Bock applies its trading policy directly, 
which is to say that it supplies directly to a restricted set of customers, known as 
‘direct customers’ or ‘large retail customers’, which generally demand to 
negotiate directly with Super Bock because of the volume of their purchases. 
3 As regards the HORECA (on-trade) sector, which covers purchases in ‘hotels, 
restaurants and cafés’ for consumption away from home, Super Bock relies 
largely on a network of independent distributors which buy its products in order to 
resell them in the national territory, except in those areas, indicated below, in 
which Super Bock distributes its products directly: Lisbon, Porto, Madeira, 
Coimbra (until 2013) and (since 2014) the Faial and Pico islands in the Azores. 
4 As part of the business relationship which Super Bock has with its network of 
independent distributors (‘distributors’), the latter buy from it a varied range of 
beverages including beers, bottled waters, juices and soft drinks, ciders and wines, 
mainly for retail resale in the HORECA sector. 
5 The business relationship between Super Bock and its distributors (which do not 
form part of the Super Bock group) is based on exclusive distribution contracts for 
a given geographical sales area. 
6 Those contracts have a term of one year, extendable for equal and successive 
periods, and can be terminated by the parties at any time. 
7 In that context, Super Bock negotiates with its distributors annual sales targets per 
product category which, if not met, allow the appellant to terminate the 
distribution contract in question. 
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8 In the course of its business relationship with its distributors, Super Bock fixed 
and imposed regularly, universally (on the entire network of distributors) and 
without change, during the period from at least 15 May 2006 until 23 January 
2017, the terms of business which those distributors were compelled to apply 
when reselling products they had purchased from Super Bock, in particular the 
prices to be charged to their retail customers, either by indicating a specific price 
or by setting minimum prices or minimum average prices. 
9 Super Bock expressly reserves for itself the right to fix the resale prices of the 
products which it markets and, in practice, distributors are given no decision-
making power. 
10 Super Bock conducts this practice through its employees, who are appointed 
internally by network managers, area managers or market managers, depending on 
the positions they hold. 
11 In most cases, Super Bock employees impose resale prices on distributors verbally 
or in writing by e-mail. 
12 Super Bock determines the resale prices it imposes on distributors so as to 
maintain a stable and consistent minimum pricing level throughout the national 
market. 
13 The usual procedure for fixing and imposing prices on distributors is as follows: 
every month (as a rule), Super Bock’s (the appellant’s) Sales Department 
approves a list of minimum resale prices which Super Bock’s network managers 
or market managers pass on to the relevant distributors with an indication, in most 
cases, that the prices indicated are mandatory, that distributors may not charge 
prices below the fixed minimum, and that, if they do, Super Bock’s coordination 
and monitoring staff will notify their non-compliance to the Sales Department, 
which will take the appropriate measures. 
14 In practice, distributors charge the selling prices fixed by Super Bock (either in the 
manner described above, or indirectly, as explained below). 
15 It is the customary and universal practice of Super Bock employees to ask 
distributors expressly and directly (by telephone or in person) to adhere to the 
resale prices indicated by Super Bock. 
16 Super Bock has put in place mechanisms for monitoring and tracking the resale 
prices charged by distributors. 
17 The monitoring and tracking system introduced by Super Bock is based 
essentially on the obligation imposed on distributors to report their resales, 
including quantities and prices, which might take the form, for example, of 
requests for distributors to send invoices for their sales on a regular basis, and on 
the reporting of instances of non-compliance to the Sales Department by the team 
SUPER BOCK BEBIDAS 
 
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of network managers and market managers and the coordination and monitoring 
team. 
18 Super Bock threatens distributors with various retaliatory measures, such as 
removing financial incentives (for example, trade discounts on the purchase of 
products by distributors from Super Bock and the reimbursement of discounts 
applied by distributors to resales) and stopping the supply and replenishment of 
stocks, as means of compelling them to charge the resale prices it has fixed. 
19 In the event of non-compliance with the terms of business applicable to resale 
which it has imposed, the appellant may go so far as to actually cut the supply of 
products to distributors and to discontinue the latter’s contribution towards [the 
determination of] resale prices (that is to say, the resetting thereof). 
20 In order to avoid non-compliance, distributors themselves often ask Super Bock to 
tell them the resale prices which they should charge, thus ensuring that Super 
Bock will not take against them the retaliatory measures they consider to be 
conceivable. 
21 Clause 2(1) of the distribution contracts concluded between Super Bock and its 
distributors states that ‘UNICER (now Super Bock) shall sell products to the 
distributor in accordance with UNICER’s price lists and general terms and 
conditions of sale, which shall form an integral part of this contract for all 
purposes’. 
22 In the period from at least 15 May 2006 until 23 January 2017, Super Bock 
regularly and universally imposed certain terms of business on distributors, 
guaranteeing positive distribution margins for them provided that they adhere to 
minimum resale prices. 
23 The appellant’s objective was to maintain a stable and consistent minimum level 
of pricing throughout the national market. 
24 AN has been a member of Super Bock’s board of directors since 31 March 2014 
and BQ was head of Super Bock’s commercial department with responsibility for 
sales in the HORECA sector from 4 February 2013. 
Essential arguments of the parties in the main proceedings 
The appellants claim in essence that: 
– The referring court formed its conclusion as to the existence of an ‘agreement’ 
on the basis of purely indicative evidence, thus departing from EU case-law 
requiring it to be demonstrated that distributors have actually charged the 
minimum prices recommended, as established by the CJEU and the ‘Guidelines 
on Vertical Restraints’ – 2010/C130/01. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-211/22 
 
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– The existence of an agreement requires proof that the supplier’s policy has 
actually been applied in practice. 
– From the facts deemed to be proved in the judgment under appeal no 
conclusion can be drawn as to the existence of direct or indirect price fixing. 
– In order to be able to characterise the infringement as a restriction by object, it 
must be examined whether the conduct censured is sufficiently harmful, and to 
be able to do this it is necessary to know the economic context in which the 
allegedly anti-competitive practices took place, which is not apparent from the 
judgment. 
The Competition Authority rejects the appellant’s line of argument. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
25 The appellants have been found to have infringed Article 9(1) of the NRJC, the 
wording of which is essentially the same as that of Article 101(1) TFEU, which 
forms part of the approximation and harmonisation of the rules applicable in the 
European Union to practices capable of significantly affecting trade between 
Member States, and, since national competition law is generally based almost 
entirely on the corresponding provisions of EU competition law, the CJEU has 
jurisdiction to hear and determine the request for a preliminary ruling (see the 
judgment of 26 November 2015 in SAI Maxima Latvija, C-345/14, 
EU:C:2015:784). 
26 It is not clear whether the conduct described in the documents before this court 
constitutes an agreement or practice the object of which is restrictive of 
competition within the meaning of Article 9(1) of the NRJC and Article 101(1)(a) 
TFUE. 
27 The judgments of the CJEU which the Court of Competition, Regulation and 
Supervision, Santarém, cites in its judgment (Societé Technique Minière, of 
30 June 1966, 56/65, EU:C:1966:38; Cartes Bancaires, of 11 September 2014, 
C-67/13 P, EU:C:2014:2204, and Budapest Bank and Others, of 2 April 2020, 
C-228/18, EU:C:2020:265) do not relate to situations similar to that forming the 
subject of this case. 
28 It is important determine whether that practice or agreement restricts competition 
by its nature and object, with the result that it is not necessary to examine its 
effects, or whether, in order for the conduct at issue to be capable of constituting a 
practice or agreement that is restrictive of competition, it falls to be demonstrated 
how harmful that conduct is or what its anti-competitive effects are.