In a decision dated February 28th, 2025, the Bourges Court of Appeal declared null and void an exclusive purchasing agreement between a beverage operator and a wholesaler, pursuant to Article 101(2) TFEU and European Regulation no. 330/2010 of April 20, 2010 (now replaced by Regulation no. 2022/720).
Introduction
A café-restaurant operator and a beverage wholesaler entered into an exclusive purchasing contract under which the operator agreed to buy beverages exclusively from the wholesaler for a duration of six years.
In return, the wholesaler undertook to provide equipment and offer commercial discounts to the café-restaurant operator.
As part of the transfer of its business, the operator faced the assignee’s refusal to take over the exclusive purchasing agreement.
In consequence:
- The wholesaler sought cancellation of the contract due to the operator’s sole fault, claiming compensation as well as reimbursement for the equipment provided.
- The operator sought the nullity of the contract, arguing that the consideration was illusory or negligible and that the agreement infringed EU law.
While a first instance judgment upheld the wholesaler’s claims, the Bourges Court of Appeal reached a different conclusion: as the exclusive purchasing obligation exceeded five years, the contract was found to be contrary to EU competition law and therefore void as of right.
Risks or effects
Regulation no. 330/2010 defines a non-compete obligation as any obligation causing the buyer to purchase more than 80% of its needs from the same supplier. According to the same provisions, such an obligation may not exceed five years without losing the benefit of the block exemption and being a hardcore restriction.
In this case, the exclusive purchasing obligation is indeed a non-compete obligation and exceeds the five-year limit. As such, it may affect trade between Member States and may have as its object or effect to impede competition within the internal market.
Thus, in accordance with Article 101(2) TFEU, which provides that agreements prohibited under Article 101(1) TFEU are automatically null and void, the Court held the nullity of the contract.
Conclusion
This decision underlines the importance of paying particular attention to non-compete obligations and their duration.
Article by Loi & Stratégies (France).
