Exclusive Distribution and Active Sales under EU Competition Law – Case Study

Scenario

Artisan Coffee BV is the exclusive distributor of coffee beans ‘Koppi’ in Belgium. It has had an exclusive distribution agreement with the Dutch supplier of coffee beans and Koppi coffee machines (Cono) since 2005.

A dispute arose when Artisan Coffee BV accused supermarket chain Carrefour of unfair trading by actively selling Koppi coffee beans purchased from the Netherlands in Belgium, thus infringing Artisan Coffee BV’s exclusive distribution rights in Belgium.

Carrefour denies these allegations. According to it, Artisan Coffee BV and Cono want to impose an ‘active’ sales ban on it, whilst the conditions to do so under EU competition law are not complied with.

In advising Artisan Coffee BV and Cono whether there is a case against Carrefour in terms of Article 101 TFEU, please consider:

• What are the constitutive elements for an agreement to fall under Article 101 TFEU?
• Can the Bayer judgment assist in this analysis as to whether Cono’s buyers accepted the active sales ban?
• Is there any EU block exemption regulation available to the exclusive distributor agreement?
• What are the competition law rules on the ‘parallel imposition’ requirement and ‘active’ sales in this context?
• Is there any case law that can assist in the formulation of the advice to Cono and Artisan Coffee BV?

Answer

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