Author: Can Yıldız
Introduction
Resale Price Maintenance (RPM) is still considered a hardcore restriction under the recently revised Vertical Block Exemption Regulation (VBER), which means that it cannot benefit from a statutory exemption under Article 101(1) TFEU, unlike certain other types of vertical agreements. However, it has been debated whether this classification automatically indicates a violation of Article 101(1) TFEU.
The Court of Justice of the European Union (CJEU) recently issued a significant judgment regarding Super Bock, a Portuguese beer/beverage manufacturer, and its imposition of minimum resale prices on exclusive distributors. The CJEU's ruling sheds light on the potential contravention of competition law in such practices. This article explores the background of the case, the CJEU's decision, and its implications for competition law.
Background
Super Bock Bebidas, a prominent Portuguese beverage manufacturer and supplier, was fined EUR 24 million by the Portuguese competition authority (Autoridade da Concorrencia – AdC) in 2019 for imposing specific fixed or minimum prices on its distributors for sales to hotels, restaurants, and bars. Despite complaints, the distributors complied with the imposed prices, as Super Bock monitored their adherence. Non-compliance could result in various penalties, such as the removal of trade discounts or altogether refusal to supply products. Distributors often sought guidance from Super Bock to avoid these retaliatory measures.
Super Bock appealed the decision, arguing that the competition authority failed to demonstrate the existence of an agreement and the harm caused. The company sought to have the fine completely annulled or reduced.
In March 2022, the Lisbon Court of Appeal referred several questions to the CJEU for a preliminary ruling. The questions sought clarification on...
