Update Commercial 2026: Sales and distribution-related antitrust law

Sales and distribution-related antitrust law: stricter standards for cooperation and exclusivity – easier access to essential infrastructure

In 2025, antitrust rules on sales and distribution again played a major role in administrative and judicial decisions as well as in advisory practice. New fining decisions of the European Commission and landmark judgments of the ECJ concern key elements of modern distribution systems, ranging from exclusive distribution and platform access to the handling of competitively sensitive data.

Delivery Hero: no-poach clause, exchange of information and market sharing

In its decision AT.40795 of 2 June 2025 – Food Delivery Services, the European Commission imposed one of the highest fines to date in the digital and platform context (over EUR 300 million). The conduct punished included not only classic market-sharing arrangements but in particular mutual no-poach obligations as well as intensive exchanges of strategic information.

Although the underlying situation was horizontal in nature, the decision is equally relevant for sales and distribution-related antitrust law: It demonstrates that even limited exchanges of information on prices, capacities or expansion strategies may be regarded as a separate cartel infringement. Companies should therefore always subject distribution cooperations, joint ventures and project-related coordination to antitrust scrutiny. However, as article 2(5) of the Vertical Block Exemption Regulation shows, the limits of information exchange must also be observed in dual distribution within the supply chain.

Exclusive distribution and exemption: clarifications in Beevers Kaas

In its judgment in the case of Beevers Kaas ECJ, judgment of 8 May 2025, C-581/23, the European Court of Justice clarified the conditions for the block exemption of exclusive distribution agreements. The case arose from a legal dispute between the Belgian exclusive distributor Beevers Kaas and the Dutch supermarket chain Albert Heijn concerning Beemster cheese, which the manufacturer Cono sells in Belgium exclusively through Beevers Kaas. Other purchasers of the cheese refrained from actively selling in Belgium solely because they were aware of the exclusive distribution agreement between Cono and Beevers Kaas. Albert Heijn, however, sourced the same cheese for other markets and later also sold it actively in Belgium, which Beevers Kaas regarded as an infringement of its exclusive rights.

The European Court of Justice held that, under the Vertical Block Exemption Regulation (Regulation (EU) No 330/2010) applicable until 2022, an exclusive distribution agreement can benefit from the block exemption only if not merely a territory is formally allocated on an exclusive basis, but there is also a genuine “parallel imposition” of restrictions. What is decisive is that the supplier informed its other purchasers of the prohibition and that those purchasers (expressly or impliedly) agreed to the prohibition on active sales into the exclusive territory. The mere absence of active sales by other distributors is not sufficient.

The judgment raises the bar for the contractual and practical design of exclusive distribution models. Although the specific case concerned the previous Regulation (EU) No 330/2010, the Court’s reasoning can be applied to the currently applicable Regulation (EU) 2022/720. Further information can also be found here (in German).

Access to platforms and infrastructure: lower barriers to mandatory contracting in some cases and greater clarity

In its judgments in Android Auto (ECJ, judgment of 25 February 2025, C-233/23) and Lukoil (ECJ, judgment of 18 De­cember 2025, C-245/24), the Court of Justice of the European Union has further developed the standards governing a mandatory contracting obligation under antitrust law. In Android Auto, the court ruled that a dominant platform operator’s refusal to ensure interoperability may constitute an abuse of a dominant position under article 102 TFEU. This is to apply even where the platform is not indispensable to the commercial activity of the third-party app, provided that the platform is designed to be open to third parties and that a lack of interoperability makes the app less attractive to consumers.

In this case, the Court of Justice of the European Union thereby lowers the strict criteria developed in the Bronner judgment (ECJ, judgment of 26 November 1998, C-7/97), under which access to the facility must be indispensable for the competitor’s activity in the sense that there is no actual or potential substitute for it.

In the Lukoil decision, the Court recently clarified the conditions under which the strict Bronner criteria apply to access to essential infrastructure originally developed not by the dominant undertaking, but by public authorities. According to the court, these criteria apply where, first, the competitive nature of the price and other conditions of the privatisation is ensured, and, second, the dominant undertaking enjoys complete discretion regarding access to the infrastructure. Further information can also be found here.

Vehicle data (RMI/OBD): new rules from 2026

A delegated regulation of the European Commission is planned for 2026, which will change the factual and legal criteria under which vehicle manufacturers must grant independent economic operators access to, among other things, repair and maintenance information (RMI) and OBD information. Such data can provide essential input for the independent automotive aftermarket and is therefore also of central importance from a sales-and-distribution-related antitrust law perspective. As the European Commission clarifies in its Motor Vehicle Guidelines, refusing or restricting access to essential input may jeopardize an OEM’s selective distribution system or constitute an abuse of market power under Article 102 TFEU.

In future, new access rules will have to be observed as a result of the delegated regulation, with vehicle manufacturers being given, among other things, the opportunity to implement certain protection concepts against cyber security risks within newly established, binding criteria.

Outlook: first guidelines on the application of article 102 TFEU

The European Commission is continuing to develop its guidelines on the application of article 102 TFEU (abuse of dominant positions). In 2024, the European Commission had already published a first draft of the guidelines, which was discussed in depth during a public consultation and a stakeholder workshop in February 2025. The aim is to replace the existing Enforcement Priorities Guidance from 2009 with a more coherent document that is more closely aligned with case law of the Court of Justice of the European Union. Although European Commission guidelines are not binding on the courts, experience shows that such guidelines are generally a good point of reference for practice.

The guidelines were originally meant to be published in 2025, but this did not happen. However, after evaluating extensive feedback from the business community, the legal profession and public authorities, publication is now expected in 2026

Conclusion

Cooperation in distribution, exclusive distribution models and access to data, platforms and infrastructure are subject to increasingly strict antitrust scrutiny. Companies should review existing sales structures, critically examine information flows and ensure that new business models are cleared from an antitrust perspective at an early stage.

This article is part of the "Update Commercial 2026". All insights and the entire report as a PDF can be found here.