Opinion of Advocate General Medina delivered on 9 January 2025

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 blockexemption 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.

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 onlyif 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.