62023CC0581
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 9 January 2025 (
1
)
Case C‑581/23
Beevers Kaas BV
v
Albert Heijn België NV,
Koninklijke Ahold Delhaize NV,
Albert Heijn BV,
Ahold België BV,
Intervener:
B.A. Coöperatieve Zuivelonderneming Cono
(Request for a preliminary ruling from the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium))
(Reference for a preliminary ruling – Competition – Agreements, decisions and concerted practices – Article 101(3) TFEU – Vertical agreements – Regulation (EU) No 330/2010 – Exemption – Article 4(b)(i) – Hard-core restrictions – Exceptions – Exclusive distribution agreements – Conditions – Prohibition of active sales in the exclusively allocated territory – Parallel imposition requirement – Concept of ‘agreement’ – Proof of a concurrence of wills between the supplier and its buyers – Absence of active sales by other buyers in the exclusively allocated territory of the exclusive distributor)
1.
The present request for a preliminary ruling from the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium) concerns the interpretation of Article 4(b)(i) of Commission Regulation (EU) No 330/2010 (also known as the Vertical Block Exemption Regulation (VBER)). (
2
) It has been made in the context of proceedings between Beevers Kaas BV, on the one hand, and Albert Heijn België NV, Koninklijke Ahold Delhaize NV, Albert Heijn BV and Ahold België BV (collectively, ‘the Albert Heijn companies’), on the other.
2.
The proceedings relate to the latter’s alleged infringement of an exclusive distribution agreement between Beevers Kaas and B.A. Coöperatieve Zuivelonderneming Cono (cooperative dairy company; ‘Cono’) for the distribution of the well-known Beemster cheese (
3
) in Belgium and Luxembourg.
I. Legal framework
A.
European Union law
3.
Regulation No 330/2010, which the referring court regards as being applicable to the dispute in the main proceedings, succeeded, with effect from 1 June 2010, Commission Regulation (EC) No 2790/1999. (
4
) In accordance with the second paragraph of Article 10 of Regulation No 330/2010, that regulation expired on 31 May 2022.
4.
Article 2 of Regulation No 330/2010 established an exemption from Article 101(1) TFEU for vertical agreements containing vertical restraints (‘the block exemption’).
5.
Article 4 of Regulation No 330/2010 concerned ‘hardcore restrictions’ which, with some exceptions, could not benefit from the block exemption provided for in Article 2 of that regulation. Article 4 provided:
‘The exemption provided for in Article 2 shall not apply to vertical agreements which, directly or indirectly, in isolation or in combination with other factors under the control of the parties, have as their object:
…
(b)
the restriction of the territory into which, or of the customers to whom, a buyer party to the agreement, without prejudice to a restriction on its place of establishment, may sell the contract goods or services, except:
(i)
the restriction of active sales into the exclusive territory or to an exclusive customer group reserved to the supplier or allocated by the supplier to another buyer, where such a restriction does not limit sales by the customers of the buyer,
…’
6.
Commission Regulation (EU) 2022/720, (
5
) which succeeded Regulation No 330/2010, entered into force on 1 June 2022 and is to expire on 31 May 2034, pursuant to Articles 10 and 11 thereof.
7.
The European Commission’s Guidelines on Vertical Restraints (
6
) were published at the same time as Regulation No 330/2010 was adopted.
8.
According to paragraph 25 of the 2010 Guidelines:
‘…
(a)
[Regulation No 330/2010] applies to agreements and concerted practices. … For there to be an agreement within the meaning of Article 101 [TFEU] it is sufficient that the parties have expressed their joint intention to conduct themselves on the market in a specific way. The form in which that intention is expressed is irrelevant as long as it constitutes a faithful expression of the parties’ intention. In case there is no explicit agreement expressing the concurrence of wills, the Commission will have to prove that the unilateral policy of one party receives the acquiescence of the other party. For vertical agreements, there are two ways in which acquiescence with a particular unilateral policy can be established. First, the acquiescence can be deduced from the powers conferred upon the parties in a general agreement drawn up in advance. If the clauses of the agreement drawn up in advance provide for or authorise a party to adopt subsequently a specific unilateral policy which will be binding on the other party, the acquiescence of that policy by the other party can be established on the basis thereof … Secondly, in the absence of such an explicit acquiescence, the Commission can show the existence of tacit acquiescence. For that it is necessary to show first that one party requires explicitly or implicitly the cooperation of the other party for the implementation of its unilateral policy and second that the other party complied with that requirement by implementing that unilateral policy in practice … [For] vertical agreements, tacit acquiescence may be deduced from the level of coercion exerted by a party to impose its unilateral policy on the other party or parties to the agreement in combination with the number of distributors that are actually implementing in practice the unilateral policy of the supplier. For instance, a system of monitoring and penalties, set up by a supplier to penalise those distributors that do not comply with its unilateral policy, points to tacit acquiescence with the supplier’s unilateral policy if this system allows the supplier to implement in practice its policy. …’
9.
Paragraph 51 of the 2010 Guidelines states as follows:
‘There are four exceptions to the hardcore restriction in Article 4(b) of [Regulation No 330/2010]. The first exception in Article 4(b)(i) allows a supplier to restrict active sales by a buyer party to the agreement to a territory or a customer group which has been allocated exclusively to another buyer or which the supplier has reserved to itself. A territory or customer group is exclusively allocated when the supplier agrees to sell its product only to one distributor for distribution in a particular territory or to a particular customer group and the exclusive distributor is protected against active selling into its territory or to its customer group by all the other buyers of the supplier within the [European] Union, irrespective of sales by the supplier. The supplier is allowed to combine the allocation of an exclusive territory and an exclusive customer group by for instance appointing an exclusive distributor for a particular customer group in a certain territory. Such protection of exclusively allocated territories or customer groups must, however, permit passive sales to such territories or customer groups. For the application of Article 4(b) of [Regulation No 330/2010], the Commission interprets “active” … sales as follows:
–
“Active” sales mean actively approaching individual customers by for instance direct mail, including the sending of unsolicited e-mails, or visits; or actively approaching a specific customer group or customers in a specific territory through advertisement in media, on the internet or other promotions specifically targeted at that customer group or targeted at customers in that territory. Advertisement or promotion that is only attractive for the buyer if it (also) reaches a specific group of customers or customers in a specific territory, is considered active selling to that customer group or customers in that territory.
…’
B.
Belgian law
10.
Article VI.104 of the Wetboek van economisch recht (Code of Economic Law; ‘the WER’) of 28 February 2013 provides:
‘Any act contrary to honest market practice by which an undertaking adversely affects or may adversely affect the professional interests of one or more undertakings shall be prohibited.’
II. The facts giving rise to the dispute in the main proceedings and the questions referred for a preliminary ruling
11.
Beevers Kaas, the appellant in the main proceedings, is the exclusive distributor in Belgium of Beemster cheese, which it purchases from the producer Cono, a company established in the Netherlands.
12.
Since 1 January 1993, there has been an exclusive distribution agreement between Cono and Beevers Kaas for the distribution of Beemster cheese in Belgium and Luxembourg (‘the exclusive distribution agreement’).
13.
The Albert Heijn companies are active in the supermarket sector in Belgium and the Netherlands. They are buyers (
7
) of Beemster cheese produced by Cono for markets outside Belgium and Luxembourg.
14.
Beevers Kaas accuses the Albert Heijn companies of infringing honest market practice by carrying out activities in Belgium that have the direct or indirect effect of infringing Beevers Kaas’s exclusivity rights under the exclusive distribution agreement, despite knowing that Cono is bound by that agreement.
15.
According to the Albert Heijn companies, Beevers Kaas and Cono seek to impose on them an active sales ban, which is prohibited. They consider that the exclusive distribution agreement does not require Cono to protect Beevers Kaas from active sales by other buyers and that it does not fulfil the strict conditions of competition law to justify a resale ban.
16.
By judgment of 9 July 2021, the President of the ondernemingsrechtbank Antwerpen (Business Court, Antwerp, Belgium) dismissed as unfounded the action brought by Beevers Kaas on the ground that ‘it does not follow from any contractual or legislative provision that undertakings are prohibited from obtaining supplies directly, in the Netherlands, from Cono and from distributing [them] in Belgium’. In particular, the president of that court emphasised the fact that the exclusive distribution agreement provided only that Cono could not itself sell to Belgian distributors. Beevers Kaas’s interpretation would mean that all undertakings, wherever they may be established, have to comply with that agreement and refrain from selling Cono’s cheese in Belgium. Similarly, Beevers Kaas does not enjoy any contractual protection in its exclusive territory in Belgium against active sales by other buyers which obtain their supplies from Cono.
17.
Beevers Kaas brought an appeal against that judgment before the Hof van beroep te Antwerpen (Court of Appeal, Antwerp), which is the referring court.
18.
Before that court, the parties disagree on whether the exclusive distribution agreement complies with the conditions laid down in Article 4(b)(i) of Regulation No 330/2010 and, in particular, the condition known as ‘the parallel imposition requirement’. Under that condition the supplier is required to protect its exclusive distributor from active selling into the exclusive territory by all its other distributors/buyers within the European Economic Area (EEA).
19.
By interim judgment of 27 April 2022, the referring court resolved the dispute concerning the content and scope of the exclusive distribution agreement in favour of Beevers Kaas. It held that Beevers Kaas had shown that the Albert Heijn companies had, at least tacitly, acquiesced to the active sales ban. However, in the view of the referring court, Beevers Kaas must also show that all the distributors/buyers other than the Albert Heijn companies accepted that ban.
20.
The referring court agrees with an observation made by the Belgian national competition authority (‘the NCA’), which that court asked to intervene as amicus curiae, according to which the parallel imposition requirement must be met in order for an active sales ban to be legitimate. That requirement must be interpreted in the light of the concept of ‘agreement’ within the meaning of Article 101 TFEU and Article IV.1 of the WER.
21.
In that regard, the referring court notes that Regulation No 330/2010 and the 2010 Guidelines do not specify how the supplier must protect its exclusive distributors from active sales in the exclusive territory by the supplier’s other buyers. In particular, they do not indicate how the supplier is to communicate the active sales ban to its other buyers, or how those buyers are to acquiesce to that ban.
22.
In the present case, there is no evidence of the express acceptance of the active sales ban by all Cono’s other buyers. The NCA considers that the referring court could infer tacit acquiescence to that ban from the mere fact that, at present, none of those buyers sells products purchased from Cono in Belgium. Beevers Kaas concurs with that view and therefore considers that it has sufficiently shown that all of Cono’s buyers accepted the ban on active sales.
23.
By contrast, the Albert Heijn companies consider that, for there to be tacit acquiescence, Beevers Kaas must show that Cono’s strategy, namely that no Beemster product purchased in the Netherlands may be sold actively in Belgium, was communicated to all its buyers.
24.
In those circumstances, the Hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Can the parallel imposition requirement laid down in Article 4(b)(i) of [Regulation No 330/2010] be regarded as met, and can a supplier who satisfies the other conditions laid down in [that regulation] 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? … [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 [Regulation No 330/2010] be regarded as met, and can a supplier who satisfies the other conditions laid down in [that regulation] 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?’
III. Procedure before the Court of Justice
25.
Written observations were submitted by Beevers Kaas, the Albert Heijn companies, Cono, the Belgian Government and the Commission. A hearing was held on 16 October 2024, at which those parties were represented.
IV. Assessment
A.
First question referred
26.
By this question, the referring court seeks to know, in essence, whether Article 4(b)(i) of Regulation No 330/2010 should be interpreted as meaning that – in a situation where a supplier has allocated an exclusive territory to a particular distributor – the mere finding that its other buyers (that is to say, buyers which do not enjoy that specific exclusive arrangement) do not engage in active sales in that territory is sufficient to establish the existence of an agreement between that supplier and those other buyers concerning the active sales ban in that territory.
1. Whether the parallel imposition requirement forms part of Article 4(b)(i) of Regulation No 330/2010
27.
In its first question, the referring court invokes the parallel imposition requirement. In order to answer that question it is appropriate to examine whether elements in Article 4(b)(i) of Regulation No 330/2010 allow the Court to draw the conclusion – for the first time in its case-law – that that article contains a parallel imposition requirement, despite the fact that that article does not explicitly refer to such a requirement.
28.
It should be borne in mind that, in determining the scope of a provision of EU law, its wording, context and objectives must all be taken into account. (
8
)
29.
It is appropriate to start with the context of Article 4(b)(i) of Regulation No 330/2010.
30.
Article 2 of that regulation provides, under certain conditions, for a block exemption of vertical agreements from the prohibition in Article 101(1) TFEU, thus creating a safe harbour for those agreements.
31.
At the same time, it excludes from the benefit of the block exemption certain types of vertical agreements, which, irrespective of the market share of the undertakings concerned, contain certain types of serious restrictions of competition. These are agreements containing hard-core restrictions as provided for in Article 4 of that regulation.
32.
Therefore, under Article 4(b) of Regulation No 330/2010, the block
exemption provided for does not apply to vertical agreements which, directly or indirectly, have as their object the restriction of the territory in which, or the customers to whom, a buyer party to the agreement may sell the contractual goods or services, without prejudice to a restriction as to its place of establishment.
33.
Article 4(b) of Regulation No 330/2010 nevertheless provided for four exceptions. The restrictions covered by those exceptions are not considered by that regulation to be hard-core restrictions and, therefore, do not result in the withdrawal of the benefit of the block exemption for the agreement in question. In other words, that provision allows four types of restrictions to continue to be covered by the block exemption.
34.
In that regard, it should be recalled that that article provides for four exceptions (to an exception), and exceptions to the rule must be interpreted restrictively. (
9
)
35.
That brings me to the objective of Article 4(b)(i) of Regulation No 330/2010. Its objective, which is apparent from its wording, was to exempt restrictions on active sales in a distributor’s/buyer’s exclusive territory (‘the active sales ban’), (
10
) where those restrictions are contained in a binding agreement between the supplier and its other buyers. (
11
)
36.
Therefore, in the present case, the exception laid down in that provision would allow – provided that the conditions under that provision are met – the supplier (Cono) to allocate territory exclusively to one of its distributors/buyers (Beevers Kaas) and, at the same time, restrict active sales of its other buyers in that territory.
37.
As regards the wording of Article 4(b)(i) of Regulation No 330/2010, as I have already pointed out above (
12
) and as was also aptly explained in the Expert report on the review of the Vertical Block Exemption Regulation, (
13
)the parallel imposition requirement – that is, a ‘requirement to enable an active sales restriction to benefit from the block exemption’, which would frame the relationship between the supplier (Cono) and all its distributors/buyers in the present case, ‘is not explicitly reflected in [the wording of] Article 4(b)(i) of Regulation [No] 330/2010, but [it] is linked in paragraph 51 of the [2010] Guidelines to the notion of “exclusive allocation”’. It follows that it must be ascertained whether that requirement forms part of Article 4(b)(i) and thus constitutes a condition to be met in order for that article to become applicable in a case such as the one in the main proceedings.
38.
If that is established to be the case, then the parallel imposition requirement would mean that the granting of territorial exclusivity to a specific distributor/buyer (Beevers Kaas) and the application of the active sales ban to all other buyers is accompanied by an obligation for the supplier (Cono) to protect the exclusive distribution rights of such a buyer vis-à-vis all its other buyers.
39.
The concept of ‘exclusive distribution’ denotes a situation where a territory (or customer group) is ‘exclusively allocated’, that is, when the supplier agrees to sell its product only to one buyer for distribution in a particular territory (or to a particular customer group). (
14
)
40.
First, in my view, it follows implicitly (
15
) from the wording of Article 4(b)(i) of Regulation No 330/2010, and in particular from the term ‘exclusive territory’, that a supplier is permitted to allocate an exclusive territory to one of its buyers. The designation of an exclusive territory necessarily means that only a specific buyer is granted the right to distribute the product in that particular territory. In order for the exclusivity to be meaningful, the enjoyment of the right granted to that buyer must be protected against potential harm. Therefore, if a supplier decides to make use of the exception from the hard-core restrictions, that supplier is under a corresponding obligation to ensure the effectiveness of that exclusive allocation of a territory, including by way of protecting that buyer against active sales in that territory by all the supplier’s other buyers.
41.
Indeed, as the referring court pointed out, in essence, the possibility for a supplier to allocate, on an exclusive basis, a given territory to one of its distributors/buyers would be deprived of any effectiveness if the exclusive distributor/buyer were not protected against active sales in that territory by the supplier’s other buyers. (
16
) In that connection, I recall that the Court has consistently held that, where a provision of EU law is open to a number of interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness. (
17
)
42.
Secondly, it follows explicitly from the wording of Article 4(b)(i) of Regulation No 330/2010 that a supplier is permitted to restrict active sales by other buyers into the exclusive territory. That possibility would be deprived of its essence and would be nothing but an empty shell if it were not accompanied by an obligation on the supplier to guarantee that the restriction of active sales is in fact observed by those other buyers. At the same time, it should be noted that such an obligation arises only if a supplier intended to, and in fact did, make use of the exception provided for under Article 4(b)(i).
43.
It follows that by permitting restrictions on active sales into an ‘exclusive territory’, Regulation No 330/2010 includes the parallel imposition requirement within the regime of Article 4(b)(i) of that regulation.
44.
Recital 5 of Regulation No 330/2010 explains that ‘the benefit of the block exemption established by this Regulation should be limited to vertical agreements for which it can be assumed with sufficient certainty that they satisfy the conditions of Article 101(3) [TFEU]’.
45.
Recitals 6 and 7 of that regulation explain that certain types of vertical agreements can improve economic efficiency and lead to a reduction in costs of transactions and to an optimisation of sales and investment levels. It follows from those recitals that such efficiency-enhancing effects may outweigh any anticompetitive effects, provided that the requirements of that regulation are met.
46.
Finally, recital 10 of Regulation No 330/2010 states, in particular, that ‘this Regulation should not exempt vertical agreements containing restrictions which are likely to restrict competition and harm consumers or which are not indispensable to the attainment of the efficiency-enhancing effects’.
47.
It follows that agreements such as those in the present case can, in principle, be regarded as satisfying the conditions laid down in Article 101(3) TFEU. However, in order for the exception under Article 4(b)(i) of Regulation No 330/2010 to produce those efficiency-enhancing effects, the conditions of that exception must be met and implemented effectively by the parties concerned. In other words, a specific agreement or concerted practice will be exempted from the general prohibition only where the conditions prescribed by that regulation are implemented effectively and are capable of producing such efficiency-enhancing effects. When applied to the exception provided for in Article 4(b)(i), it would be possible to achieve that aim only when the exclusivity and the active sales ban are combined with effective protection of the exclusivity granted by the supplier.
48.
Taking into account the purpose of the block exemption provided for by Regulation No 330/2010, as indicated in its recitals, the reason for the parallel imposition requirement being a condition is that Article 4(b)(i) of Regulation No 330/2010 is applicable only to exclusive distribution agreements which genuinely encourage the exclusive distributor to invest in its sales activities in the exclusive territory. (
18
)
49.
In such a situation, in order to guarantee that stimulant, it is necessary for the supplier effectively to limit active sales in the exclusive territory by all the other buyers in the EEA. (
19
)
50.
The above interpretation of the wording of Regulation No 330/2010 was included in the Commission’s 2010 Guidelines, which accompanied that regulation. In that regard, I would point out that, whilst as soft law they are not binding on the Court, the fact remains that the Commission is the author of that regulation and therefore its accompanying guidelines are, in principle, a relevant tool for the correct understanding of what the legislature (in this instance, the Commission) intended it to mean. Indeed, the Court has, in the past, relied on the same guidelines in support of its interpretation of Article 101(1) TFEU. (
20
) That reading of Article 4(b)(i) of Regulation No 330/2010 – in the light of the accompanying guidelines – is in line with the objectives of that regulation, which, together with the guidelines, aims to ensure legal certainty and the uniform application of competition law, in particular Article 101 TFEU, in the European Union.
51.
Indeed, paragraph 51 of the 2010 Guidelines explains that ‘a territory or customer group is exclusively allocated when the supplier agrees to sell its product only to one distributor for distribution in a particular territory or to a particular customer group and the exclusive distributor is protected against active selling into its territory or to its customer group by all the other buyers of the supplier within the [European] Union, irrespective of sales by the supplier’ (emphasis added). It follows that the explanation provided by the Commission in its guidelines combines exclusivity and the restriction of active sales with the need to ensure the protection of the rights derived from those arrangements.
52.
It follows from the foregoing considerations that the parallel imposition requirement forms an integral part of the regime of Article 4(b)(i) of Regulation No 330/2010 and that, in that context, the 2010 Guidelines seek to clarify how the conditions of that provision should be applied in practice.
53.
I consider that the above interpretation is confirmed by the new regulation, namely Regulation 2022/720, which replaced Regulation No 330/2010 and, as explained in recital 2 of Regulation 2022/720, draws on the overall positive experience of applying Regulation No 330/2010.
54.
As the Commission explained at the hearing, Regulation 2022/720, having been adopted with the aim of clarifying certain elements, henceforth explicitly lays down a definition of an ‘exclusive distribution system’. Therefore, in order better to explain the rules and to provide legal certainty for operators who rely on the vertical block exemption regulation, the new regulation includes – in the definition of an exclusive distribution system – the parallel imposition requirement. In other words, that regulation now includes an explicit definition of the conditions relating to that distribution system, which, to my mind, the previous regulation provided for implicitly. The new regulation seeks clearly to link the parallel imposition requirement with exclusivity. (
21
)
55.
In that connection, the 2022 Guidelines on Vertical Restraints (
22
) explain that ‘in order to preserve their investment incentives, the supplier must protect its exclusive distributors against active sales, including targeted online advertising, into their exclusive territory or to their exclusive customer group by all the supplier’s other buyers’.
2. How can the parallel imposition requirement be met?
56.
It follows from the analysis above that in order for the parallel imposition requirement to be fulfilled in the present case, it must first be shown that there was or is an agreement between the supplier (Cono) and all its buyers. Indeed, it follows from the logic of the exemption regime under Article 4(b)(i) of Regulation No 330/2010 that the exception from the ‘restrictions that remove the benefit of the block exemption – hardcore restrictions’ only becomes applicable where the parties (the supplier and its buyers) agree to comply with the conditions provided in that article.
57.
It seems to me that, in the spirit of Article 4(b)(i) of Regulation No 330/2010, the most obvious way of demonstrating compliance with the parallel imposition requirement would be to insert an explicit clause in the binding written agreements between the supplier and all its other buyers restricting active sales. (
23
) Such a solution would be the most preferable one with regard to the principle of legal certainty. In that connection, I note that, in the main proceedings, it has already been ruled, by a judgment which has become final, that the exclusivity granted to Beevers Kaas necessarily implied an obligation for Cono to protect Beevers Kaas from active sales by all other buyers in Belgium and Luxembourg. (
24
)
58.
Given that the case in the main proceedings appears to feature neither such explicit clauses (
25
) nor written agreements, the main questions to be addressed in this case are (i) the legal characterisation of the relationship between the supplier (Cono) and its other buyers; and (ii) the identification of the consequences which should be drawn from that relationship.
59.
Given the absence of any precision in Regulation No 330/2010 as to how the parallel imposition requirement is to be satisfied, in particular, in order to show that the parties have agreed to the conditions underlying that requirement, reference must be made to the concept of an agreement within the meaning of Article 101(1) TFEU.
60.
It follows – as the referring court suggests in the order for reference – that it is appropriate to examine whether there existed, in parallel with the exclusive distribution agreement between Cono and Beevers Kaas, an agreement, within the meaning of the Court’s case-law, between the supplier Cono and its other buyers regarding an active sales ban in the exclusive territory allocated to Beevers Kaas.
61.
The Court’s case-law makes clear, in particular, that ‘in order to constitute an agreement within the meaning of Article [101(1) TFEU], it is sufficient that an act or conduct which is apparently unilateral be the expression of the concurrence of wills of at least two parties, the form in which that concurrence is expressed not being by itself decisive’. (
26
)
62.
Moreover, that case-law points out that ‘the will of the parties may result from both the clauses of the dealership agreement in question and from the conduct of the parties, and in particular from the possibility of there being tacit acquiescence by the dealers in a call from the manufacturer’. (
27
) That reasoning is also applicable to a relationship between a supplier and its distributors/buyers, such as the one in the main proceedings.
63.
According to the Bayer case-law, (
28
) such an agreement cannot be based on what is only the expression of a unilateral policy of one of the contracting parties, which can be put into effect without the assistance of others. For an agreement within the meaning of Article 101(1) TFEU to be capable of being regarded as having been concluded by tacit acceptance, ‘it is necessary that the manifestation of the wish of one of the contracting parties to achieve an [anticompetitive] goal constitute an invitation to the other party, whether express or implied, to fulfil that goal jointly’. (
29
)
64.
In order to recognise that there was an agreement for the purposes of Article 4(b)(i) of Regulation No 330/2010 and the exception therein, it is appropriate to rely on that case-law, which implies that it is necessary to establish (i) an invitation by the supplier to make use of that exception and (ii) at least a tacit acceptance of that invitation by its buyers.
65.
The relevant case-law is also reflected in the Commission’s 2010 Guidelines. (
30
) It follows from those guidelines that, where the intention is not demonstrated in an express agreement, it must be shown that the unilateral strategy of one party receives the acquiescence of the other. There is tacit acquiescence where there is an explicit or implicit invitation by which one party invites the other party to cooperate in the implementation of that unilateral strategy and the latter subsequently acquiesces by implementing that strategy.
66.
The recent judgment in Super Bock (
31
) clarifies and codifies that case-law. It can be inferred from that judgment that, for the purposes of applying the parallel imposition requirement (that is, for establishing that there was an agreement between the supplier and its other buyers), it is necessary to examine whether there was a concurrence of wills on the part of the parties, which may result from the clauses of the distribution agreement and from the conduct of the parties and, in particular, from the possible existence of express or tacit acquiescence on the part of the distributors. (
32
)
67.
That judgment (
33
) – given in a case where a supplier imposed certain restrictions on its distributors, in particular, minimum resale prices – makes clear that ‘in order for there to be an “agreement” within the meaning of Article 101(1) TFEU, it suffices for undertakings to have expressed their joint intention to conduct themselves on the market in a specific way’.
68.
Next, the Court recalls in that judgment (
34
) that ‘an agreement cannot therefore be based on a statement of a purely unilateral policy of one party to a contract for distribution’.
69.
However, the Court notes in the same judgment (
35
) that ‘an act or conduct which is apparently unilateral will constitute an agreement, within the meaning of Article 101(1) TFEU, where it is the expression of the concurrence of wills of at least two parties, the form in which that concurrence is expressed not being by itself decisive’.
70.
Therefore, that concurrence of the parties’ wills may be shown ‘from the terms of the distribution contract at issue … and, in particular, from any explicit or tacit acquiescence on the part of the distributors to an invitation to comply with [the requirement concerned]’. (
36
)
71.
It follows that, in order to demonstrate that the parallel imposition requirement with regard to Cono’s other distributors/buyers is fulfilled in the case in the main proceedings, there are several alternatives for showing that the conditions under Article 4(b)(i) of Regulation No 330/2010 are met.
72.
First, the active sales ban can be expressly provided for in the distribution agreement concluded with each distributor/buyer, which does not appear to be the case in the main proceedings.
73.
Secondly, explicit acquiescence by buyers other than Beevers Kaas could, in certain circumstances, be inferred from the powers conferred on the parties under the agreement concluded by them. (
37
) That would be the case if the agreements concluded between Cono and its other buyers conferred on Cono the power to impose active sale bans in respect of the territories that it has allocated, or would allocate, exclusively to a specific buyer or buyers.
74.
Thirdly, it is possible to rely on the Court’s case-law, as reflected in paragraph 25 of the 2010 Guidelines, to assert that, in the absence of explicit acquiescence, the existence of tacit acquiescence must be shown. In order to do so, it is necessary to establish, first, that one party requires, expressly or implicitly, the cooperation of the other party in the implementation of its unilateral strategy and, secondly, that the other party complies with that requirement by implementing that unilateral strategy.
75.
Moreover, paragraph 57 of the judgment in Super Bock raises another relevant element, in so far as ‘the existence of an agreement, within the meaning of Article 101(1) TFEU, … may be established not only by means of direct evidence but also on the basis of consistent coincidences and indicia, where it may be inferred that a supplier invited its distributors to [follow a certain requirement] and that the latter, in practice, complied with [that requirement] indicated by the supplier’ (emphasis added).
76.
It follows that it is appropriate, in the present case – where direct or explicit contractual conditions or direct evidence of the agreement between Cono and its buyers appear to be absent – to examine what could constitute the ‘consistent coincidences and indicia’ which make it possible to infer, in the case of an active sales ban in an exclusive territory, that the supplier (Cono) has invited its other distributors/buyers to follow such a ban and that the latter have, in practice, complied with that ban.
77.
Therefore, the referring court will have to examine the facts relating to two elements, which are linked and cumulative, in so far as, if those elements are present, together they show the presence of a concurrence of wills and, as a result, of an agreement within the meaning of Article 101(1) TFEU.
78.
The first element is ‘the invitation’, that is, whether the supplier (Cono) expressly or implicitly invited the other buyers to abstain from making active sales in the exclusive territory. Such an invitation can take different forms. For instance, it could have been carried out by way of a specific communication to those other buyers (by means of emails, letters, clauses in contracts, formal notices, retaliation measures or other similar actions), by which Cono invited them to respect the exclusive territory and the active sales ban on pain of retaliatory measures. An invitation can also be carried out in another way, that is, by way of the inclusion of specific mentions or conditions in the supplier’s general terms and conditions, which could, for instance, be attached to the invoice sent to its distributors/buyers or made available by other means.
79.
I consider that it is possible here to draw a parallel with paragraph 52 of the judgment in Super Bock, which arguably implies that the supplier must proactively and clearly inform its distributors/buyers of its use of the exclusive distribution system and of an active sales ban and monitor their compliance with that system. (
38
) For instance, the supplier should inform all its buyers at the time the exclusivity was granted and upon the appointment of each new distributor/buyer, and should make it clear to them that they are each required to comply with that system.
80.
It follows that, in order to establish that there was ‘an invitation’, the assessment would need to show Cono’s clear intention to protect Beevers Kaas in the exclusive territory and would need to indicate what specific behaviour Cono expected from its other buyers.
81.
The second element is ‘the acceptance’ or the acquiescence by the other buyers of the above active sales ban. It can also result from various elements, such as an explicit acknowledgement of that ban (by way of an exchange of letters, internal notes in the context of contractual negotiations) or an implicit form of acknowledgement. An implicit acknowledgement can be expressed, for instance, through the cessation or absence of active sales by the other buyers in the exclusive territory, or the abandonment of the buyers’ will to proceed with such sales after notification from the supplier. It may also be shown by way of a failure by those buyers to contest the active sales ban in that territory or the acceptance of the general terms and conditions, which refer to that ban.
82.
In order to establish an implicit acknowledgement, the above ‘consistent coincidences and indicia’ would need clearly to demonstrate the will of the other distributors/buyers to accept the supplier’s invitation to respect the exclusive distribution system and to comply with it. That would be the case in a situation where the distributors/buyers were informed, but they chose not to object to that system and acquiesced.
83.
It does not appear from the order for reference that any other buyer (save for the Albert Heijn companies) acted in breach of or contested the active sales ban. The referring court is asking whether that fact per se is sufficient to show the existence of acquiescence by the other buyers to Cono’s possible invitation.
84.
In that regard, as the Commission pointed out, the fact – which appears from the documents before the Court – that none of Cono’s other buyers engaged in active sales of Beemster cheese in Belgium is a relevant factor which the referring court may wish to take into account in its assessment, as one of the coincidences and indicia.
85.
However, such a circumstance is not per se sufficient or necessary for that purpose. (
39
) For the purposes of establishing that there was an agreement within the meaning of Article 101(1) TFEU, it is not sufficient to ascertain inactivity on the part of the other buyers. Rather, their will to acquiesce must be shown. In that respect, the question whether a distributor/buyer is actually able to enter the exclusive territory market could form part of the assessment.
86.
It could, for instance, be assessed whether the supplier’s other buyers complained about or challenged the active sales ban in the exclusive territory (
40
) and whether, as a result, they altered their conduct. However, even if one or more buyers had complained about or challenged that ban, that factor would not, in itself, be indicative of the absence of tacit acquiescence, if they nevertheless continued to comply with the active sales ban. (
41
)
87.
In other words, I consider that a mere lack of sales by the other buyers in the exclusive territory is not sufficient to show the existence of acquiescence by those buyers to an invitation by Cono.
88.
It follows from the foregoing considerations that the parallel imposition requirement is fulfilled if it can be demonstrated that there was an agreement between the supplier and its other buyers, that is, first, that the supplier has explicitly or implicitly invited those other buyers to accept the active sales ban in the exclusive territory and, secondly, that the other buyers have, at least tacitly, expressed their will to acquiesce to that ban, which is to be established on the basis of consistent coincidences or indicia.
3. Answer to the first question referred
89.
It follows that Article 4(b)(i) of Regulation No 330/2010 must be interpreted as meaning that the parallel imposition requirement forms an integral part of that article and the mere finding that other buyers do not engage in active sales in the territory allocated exclusively to a particular buyer cannot be sufficient to establish the existence of an agreement between a supplier and its buyers concerning an active sales ban in that territory. In order for the existence of such an agreement to be established, it is necessary, first, for the supplier to have explicitly or implicitly invited those other buyers to behave in a certain clearly defined manner on the market, that is to say, not to engage in active sales in the exclusive territory and, secondly, for the buyers to have, at least tacitly, expressed their will to acquiesce to that ban, which is to be established on the basis of consistent coincidences or indicia.
B.
Second question referred
1. Consideration of the second question referred
90.
The second question raises the issue of the relevant point in time that acquiescence by the other buyers has to take place, in the light of the Court’s case-law relating to the concept of agreement within the meaning of Article 101(1) TFEU. In particular, the referring court wishes to know whether it is sufficient for the supplier to show that its other buyers accepted the active sales ban only if and when those buyers show an intention actively to sell into the exclusive territory.
91.
It follows from the order for reference that this question arises in a context where, apart from the Albert Heijn companies, Cono’s distributors/buyers appear never to have been prepared to engage in active sales in Belgium. The referring court is uncertain whether, for the purposes of applying Article 4(b)(i) of Regulation No 330/2010, it is sufficient for Cono to protect Beevers Kaas from active sales by those distributors/buyers if and to the extent that they are prepared to do so in the future, or whether that protection must be ensured from the moment Cono entered into an agreement with those other distributors/buyers.
92.
As explained in point 51 of the present Opinion, the parallel imposition requirement necessitates that the exclusive distributor be protected from active sales in its territory by all the supplier’s other buyers within the European Union.
93.
It follows from my proposed answer to the first question that this condition is fulfilled only to the extent that the other buyers acquiesce, explicitly or tacitly, to the active sales ban in the exclusive territory. For reasons of foreseeability and having regard to the principle of legal certainty, there must be sufficient temporal concomitance between the time when the supplier formulates the active sales ban and the time when the other buyers acquiesce to it.
94.
To that end, it must be demonstrated on the basis of all the evidence (as discussed in points 76 to 83 of the present Opinion) that there was an agreement in relation to the active sales ban. As I explained in point 34 of the present Opinion, Article 4(b)(i) of Regulation No 330/2010 provides for an exception (to an exception) and, therefore, must be interpreted restrictively. Moreover, taking too lenient an approach to the parallel imposition requirement and to active sale bans is not justified, given that what is at stake is otherwise a hard-core restriction of EU competition law.
95.
It follows that, in order to satisfy the parallel imposition requirement, it is not sufficient – for the purposes of establishing the existence of an agreement within the meaning of Article 101(1) TFEU – for the supplier to be able to show that its other buyers have acquiesced to the active sales ban only if and when they are about to make such sales in the exclusive territory.
96.
Thus, for so long as the supplier has not obtained such acquiescence from the other buyers, the conditions laid down by Article 4(b)(i) of Regulation No 330/2010 for the agreement to fall within the block exemption are not met.
97.
In other words, as the Commission pointed out, those conditions will be met only if and from the moment the other buyers have acquiesced to the active sales ban in the exclusive territory, and not during a previous period. Consequently, if the supplier obtains such acquiescence only at point in time ‘X’ when an entrepreneur is about to engage in active sales in the exclusive territory, the benefit of the block exemption provided for in Regulation No 330/2010 does not apply during the period which is prior to point in time ‘X’.
98.
In that regard, it is important to distinguish between, on the one hand, the existence of such acquiescence and, on the other hand, the elements necessary to prove it.
99.
The latter point is a question of fact which must be examined on a case-by-case basis, taking into account all the relevant circumstances.
100.
It is, therefore, for the supplier to show that that condition is satisfied in respect of all its other buyers, in principle, during the whole period for which it is claiming the benefit of the block exemption provided for by Regulation No 330/2010. (
42
)
2. Answer to the second question referred
101.
It follows that Article 4(b)(i) of Regulation No 330/2010 must be interpreted as meaning that, where a supplier has allocated a territory exclusively to a particular buyer, it is not sufficient, for the purposes of applying that provision, for the supplier to be able to demonstrate that its other buyers acquiesce to the restriction of active sales in the exclusively allocated territory only
if and when those buyers are about to engage in active sales in that territory. Instead, for the purposes of applying that provision, the supplier must demonstrate that the parallel imposition requirement is fulfilled in respect of all its other buyers within the EEA during the entire period for which it claims the benefit of the block exemption provided for in Regulation No 330/2010.
C.
Final remarks
102.
For the sake of completeness, I consider it appropriate to make a few final observations.
103.
It is for the referring court alone to determine the legal characterisation of the agreements at issue in the main proceedings in the light of all the foregoing clarifications.
104.
Next, if the referring court were to conclude that Article 4(b)(i) of Regulation No 330/2010 is not applicable to the present case, then it would have to determine whether the exclusive distribution agreement restricts competition within the meaning of Article 101(1) TFEU and, if so, whether the conditions for the exception provided for in Article 101(3) TFEU are satisfied. (
43
)
105.
First, the referring court would have to carry out an individual assessment of the vertical agreement at issue in order to establish whether it falls within the scope of Article 101(1) TFEU and, if so, whether it restricts competition by object or by effect, in line with the criteria set out in the Court’s case-law. (
44
)
106.
Secondly, in the event that the referring court concludes that the agreement restricts competition within the meaning of Article 101(1) TFEU, that agreement could nevertheless be compatible with Article 101 TFEU provided that the parties demonstrate that it fulfils the four cumulative conditions set out in Article 101(3) TFEU. (
45
)
107.
As the Commission pointed out, the referring court would then have to balance the pro-competitive and anticompetitive aspects of the agreement within the specific framework of assessment arising from Article 101(3) TFEU, taking into account all relevant circumstances.
108.
The referring court would have to assess inter alia the position of Cono’s competitors, the purchasing power, the market dynamics, the nature of the product and the level of business at which the parties operate. It would also have to judge whether the agreement prohibiting certain distributors from engaging in active sales in a territory allocated exclusively to another distributor (Beevers Kaas) generates efficiency gains in the sense that the latter must make investments (for example, in specific equipment, skills or know-how) in order to develop sales of the product distributed in that territory, and whether protection against active sales by other distributors in that territory is necessary in order to stimulate such investments.
V. Conclusion
109.
I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium) as follows:
(1)
Article 4(b)(i) of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) [TFEU] to categories of vertical agreements and concerted practices
must be interpreted as meaning that the parallel imposition requirement forms an integral part of that article and the mere finding that other buyers do not engage in active sales in the territory allocated exclusively to a particular buyer cannot be sufficient to establish the existence of an agreement between a supplier and its buyers concerning an active sales ban in that territory. In order for the existence of such an agreement to be established, it is necessary, first, for the supplier to have explicitly or implicitly invited those other buyers to behave in a certain clearly defined manner on the market, that is to say, not to engage in active sales in the exclusive territory and, secondly, for the buyers to have, at least tacitly, expressed their will to acquiesce to that ban, which is to be established on the basis of consistent coincidences or indicia.
(2)
Article 4(b)(i) of Regulation No 330/2010
must be interpreted as meaning that where a supplier has allocated a territory exclusively to a particular buyer, it is not sufficient, for the purposes of applying that provision, for the supplier to be able to demonstrate that its other buyers acquiesce to the restriction of active sales in the exclusively allocated territory only if and when those buyers are about to engage in active sales in that territory. Instead, for the purposes of applying that provision, the supplier must demonstrate that the parallel imposition requirement is fulfilled in respect of all its other buyers within the European Economic Area during the entire period for which it claims the benefit of the block exemption provided for in Regulation No 330/2010.
(
1
)	Original language: English.
(
2
)	Regulation of 20 April 2010 on the application of Article 101(3) [TFEU] to categories of vertical agreements and concerted practices (OJ 2010 L 102, p. 1).
(
3
)	Beemster cheese is a hard cheese made from cow’s milk. Its specific taste comes from its ingredients (milk from grass grown on sea clay in a polder four metres below sea level in the Netherlands) and from the fact that part of the production process (the stirring of the curd) is done by hand and the cheeses are ripened in changing conditions.
(
4
)	Regulation of 22 December 1999 on the application of Article 81(3) [EC] to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21).
(
5
)	Regulation of 10 May 2022 on the application of Article 101(3) [TFEU] to categories of vertical agreements and concerted practices (OJ 2022 L 134, p. 4).
(
6
)	(OJ 2010 C 130, p. 1) (‘the 2010 Guidelines’).
(
7
)	In principle, a ‘buyer’ offers its products directly to the consumer, whereas a ‘distributor’ offers its products to other companies. I will use both terms interchangeably, as the present case does not hinge on the distinctions between them.
(
8
)	Judgment of 8 December 2005, Jyske Finans (C‑280/04, EU:C:2005:753, paragraph 34). On this topic, see Lenaerts, K., ‘Interpretation and the Court of Justice: A basis for comparative reflection’, International Lawyer, Vol. 41, No 4, 2007, p. 1011.
(
9
)	See judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149, paragraph 58). See also, to that effect, judgment of 9 July 2020, Land Hessen (C‑272/19, EU:C:2020:535, paragraph 68).
(
10
)	‘Active sales’ are explained in point 9 of the present Opinion. They should be contrasted with ‘passive sales’, which constitute responding to unsolicited requests from individual customers including delivery of goods or services to such customers.
(
11
)	However, that ban must not limit the sales made by the customers of the exclusive buyer in the exclusive territory.
(
12
)	See point 27 of the present Opinion.
(
13
)	European Commission, Wijckmans, F. and Jaques, S., Expert report on the review of the Vertical Block Exemption Regulation – Active sales restrictions in different distribution models and combinations of distribution models – Final report, Publications Office of the European Union, Luxembourg, 2021, p. 27 (‘the Expert report’); emphasis added.
(
14
)	See paragraph 51 of the 2010 Guidelines.
(
15
)	This interpretation can also be inferred from the Expert report, footnote 13, op. cit., pp. 27 and 28.
(
16
)	In other words, it is necessary for an exclusive territory to be not only allocated to a distributor/buyer, such as Beevers Kaas, but also for that distributor/buyer to be protected against active sales in that territory by other buyers. Without such protection, it would be de facto impossible to allocate an exclusive territory, given that, without an active sales ban applicable to the other buyers and their compliance with that ban, there would be nothing exclusive about that territory.
(
17
)	Judgment of 24 February 2000, Commission v France (C‑434/97, EU:C:2000:98, paragraph 21).
(
18
)	See paragraph 164 of the 2010 Guidelines: ‘Exclusive distribution may lead to efficiencies, especially where investments by the distributors are required to protect or build up the brand image. In general, the case for efficiencies is strongest for new products, complex products, and products whose qualities are difficult to judge before consumption (… experience products) or whose qualities are difficult to judge even after consumption (… credence products). …’
(
19
)	I refer to all other buyers ‘in the EEA’ rather than ‘in the EU’, since the order for reference refers to ‘… active selling into the exclusively allocated territory by all its buyers within the [EEA]’ (emphasis added).
(
20
)	See judgment of 26 October 2023, EDP – Energias de Portugal and Others (C‑331/21, EU:C:2023:812, paragraph 82 et seq.). See also the Opinion of Advocate General Wahl in Coty Germany (C‑230/16, EU:C:2017:603, point 57) – in relation to the same regulation and the same guidelines as those discussed here – ‘it cannot be precluded that, in carrying out its task of interpreting EU law, the Court may adopt the legal guidance and assessment contained in those guidelines’. See also judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 210 et seq.) (the Court pointing out that Commission notices such as its guidelines, which are aimed at traders, are designed to produce external effects, are of general application and may produce legal effects).
(
21
)	Article 1(h) of Regulation 2022/720 provides that the ‘“exclusive distribution system” means a distribution system where the supplier allocates a territory or group of customers exclusively to itself or to a maximum of five buyers and restricts all its other buyers from actively selling into the exclusive territory or to the exclusive customer group’ (emphasis added).
(
22
)	OJ 2022 C 248, p. 1, paragraph 219 (‘the 2022 Guidelines’).
(
23
)	See also Wijckmans, F. and Tuytschaever, F., ‘Active sales restrictions revisited’, European Competition Law Review, Vol. 25(2), 2004, p. 110.
(
24
)	See the order for reference (original-language version), pages 19 and 20, point 2, second indent.
(
25
)	The Expert report, footnote 13, op. cit., p. 37, provides a general example of the active sales ban clause: ‘“The [buyer] will exercise its activities within [the territories]. The [buyer] shall not engage in active sales in territories which are exclusively reserved for the [supplier], nor in any territory exclusively allocated to another buyer appointed by the supplier”.’
(
26
)	Judgment of 13 July 2006, Commission v Volkswagen (C‑74/04 P, EU:C:2006:460, paragraph 37).
(
27
)	Ibid., paragraph 39 and the case-law cited.
(
28
)	Judgment of 6 January 2004, BAI and Commission v Bayer (C‑2/01 P and‑3/01 P, EU:C:2004:2, paragraphs 100 to 102).
(
29
)	Ibid., paragraph 102.
(
30
)	See paragraph 25 of the 2010 Guidelines.
(
31
)	Judgment of 29 June 2023, Super Bock Bebidas (C‑211/22, EU:C:2023:529; ‘the judgment in Super Bock’).
(
32
)	See the judgment in Super Bock, paragraphs 47 to 50.
(
33
)	Ibid., paragraph 47.
(
34
)	Ibid., paragraph 48.
(
35
)	Ibid., paragraph 49.
(
36
)	Ibid., paragraph 50.
(
37
)	See paragraph 25(a) of the 2010 Guidelines.
(
38
)	The Court points out that the fact that a supplier regularly sends to distributors lists indicating the minimum resale prices (MRPs) that it has determined, asks them to comply with those prices, which it monitors, on pain of retaliatory measures, and may apply negative distribution margins if they do not comply no longer reflects unilateral conduct if the distributors complied with those prices. The Court also states that the fact that those prices are, in practice, applied by the distributors, or that their indication is sought by the latter, who, whilst complaining to the supplier about the indicated prices, do not however apply other prices on their own initiative, could reflect the acquiescence on the part of the distributors to MRPs being fixed by the supplier.
(
39
)	See judgment of 10 February 2011, Activision Blizzard Germany v Commission (C‑260/09 P, EU:C:2011:62, paragraph 82).
(
40
)	See judgment of 11 January 1990, Sandoz Prodotti Farmaceutici v Commission (C‑277/87, EU:C:1990:6, paragraph 11).
(
41
)	See the judgment in Super Bock (paragraph 52).
(
42
)	However, it may be pointed out that, according to the 2022 Guidelines (paragraph 122), ‘where, for practical reasons and not with the object of preventing parallel trade, the exclusive territory or customer group is not protected from active sales by certain buyers for a temporary period, for example where the supplier modifies the exclusive distribution system and requires time to re-negotiate active sales restrictions with certain buyers, the exclusive distribution system may still benefit from the exemption provided by Article 2(1) of [Regulation 2022/720]’. It follows from that paragraph of the 2022 Guidelines that the period considered is limited to the time necessary for the condition of the parallel imposition requirement to be fulfilled.
(
43
)	See paragraph 47 of the 2010 Guidelines.
(
44
)	See the judgment in Super Bock, paragraphs 37 to 42, and judgment of 18 November 2021, Visma Enterprise (C‑306/20, EU:C:2021:935, paragraphs 54 to 82).
(
45
)	See the 2022 Guidelines, paragraphs 125 to 140.