Antitrust rules on sales and distribution

Like in 2023 (see our Update Commercial 2024), the antitrust rules on sales and distribution continued to play an important role in administrative and judicial decisions as well as advisory practice again in 2024. When designing and implementing supply and distribution relationships, great importance should always be attached to compliance with the antitrust framework.

This is illustrated by the European Commission’s Mondelez decision, for example. The Commission imposed a penalty of €337.5 million on the chocolate and biscuit manufacturer, among other things because it supposedly agreed restrictions regarding territories and customer groups with its wholesalers that were capable of adversely affecting competition. The European Commission emphasised that it was increasingly focusing on maintaining the functioning of the internal market (see: Noerr Insights).

A decision of the Court of Justice of the European Union (CJEU) dealt with a case in which a car importer was claimed to have agreed warranty terms and conditions with the members of its authorised distribution network that were prohibited under antitrust law and according to the competent competition authority resulted in a restriction of competition. In the request for a preliminary ruling, the CJEU specified in more detail the evidential standards for an accusation of restriction of competition by effect and confirmed that even demonstrating potential effects (i.e., effects that have not occurred yet) on competition is sufficient if these effects are appreciable.

Unlike the German Federal Cartel Office (Bundeskartellamt), Dusseldorf Higher Regional Court (Oberlandesgericht Düsseldorf) found the non-compete obligation imposed by a supplier to be admissible. In its decision, the court developed a guiding principle for assessing non-compete obligations under antitrust law that will be interesting in practice (this decision is discussed in more detail under 5 – Authorised Dealer Contracts).

The limits on sharing information under antitrust law are also relevant, since these also have to be observed in “dual distribution” (for instance where a supplier sells the products covered by a contract alongside its dealers on the market for end customers). For example, in a decision (in Danish) which is also interesting for the European context, the Danish Maritime and Commercial Court regarded sharing information as being inadmissible in such circumstances despite safeguards being provided for because these safeguards were inadequate in reality. It also remains to be seen whether the ultimately very strict standard of the CJEU will be adopted in decision-making practice when determining on sharing of information.

Apart from this, 2024 saw the end of the Intel dispute on allegedly abusive rebates, which lasted over 15 years. In the end, the CJEU overturned the €1.06 billion fine imposed on Intel by the European Commission in 2009. Even exclusive rebates given by a dominant company are not generally anticompetitive if an equally efficient competitor was able to use the same rebate system and cover its costs. As a result, the effects on competitors have to be specifically examined (see: Noerr Insights). However, this is not a free-for-all when it comes to designing bonuses and rebates. Instead, where parties enjoy a dominant market position or in situations involving relative dependence, which often exists between a supplier and its authorised distribution partners, the limits under antitrust law have to be examined in advance (see: Noerr Insights).

You can find more decisions involving antitrust rules relating to sales and distribution matters in our (Competition Outlook 2025).

This article is part of the "Update Commercial 2025". All insights and the entire report as a PDF can be found here.