When Can A Supplier Lawfully Restrict Active Sales In An Exclusive Distribution Agreement?

In its recent judgment in Beevers Kaas (Case C‑581/23),¹ the European Court of Justice (ECJ) clarified how suppliers may validly restrict active sales in exclusive distribution arrangements under Article 4(b)(i) of the Vertical Block Exemption Regulation (VBER).² The ECJ confirmed that such restrictions must be grounded in an express or tacit agreement between the supplier and all affected distributors.³

Case Background

The case arose from a dispute between Beevers Kaas, the exclusive distributor of Beemster cheese in Belgium and Luxembourg, and Dutch retailer Albert Heijn, which sourced the cheese from producer Cono and sold it in its Belgian supermarkets. While Beevers Kaas held exclusive distribution rights, Cono's agreements with its other distributors, including Albert Heijn, did not include any restriction on making targeted sales into Beevers Kaas' exclusive territory. The Antwerp Court of Appeal referred questions to the ECJ regarding the conditions