## Facts

- Binon, a Belgian company, sought to purchase newspapers and periodicals from AMP to sell them at retail in Belgium.
- AMP, a specialized press distributor, refused to supply Binon unless it complied with AMP’s selective distribution rules, including approval of retail outlets.
- AMP distributed most Belgian press products and virtually all foreign publications sold in Belgium, giving it substantial control over market access for retailers.
- AMP’s distribution model rested on a set of interlinked arrangements with a large number of publishers under which AMP (or a body it established) effectively determined which retail outlets were approved to sell press products.
- Approved retailers were required to sell at fixed retail prices set upstream, resulting in resale price maintenance.
- Some governing agreements had formally expired, but the market structure and the parties’ conduct continued to follow the same arrangements.
- The Brussels Commercial Court referred questions on whether the system fell within Article 85(1) EEC and, if so, how Article 85(3) EEC exemption could apply.

## Issues

1. Whether Article 85(1) EEC applies when agreements have formally expired but continue to produce economic effects reflected in ongoing parallel conduct.
2. Whether agreements creating a selective distribution system for press products, where a dominant distributor controls approval of retail outlets, restrict competition under Article 85(1) EEC.
3. Whether resale price maintenance within such a system is prohibited by Article 85(1) EEC.
4. What role national courts and the Commission respectively play regarding application of Article 85(1) and possible exemption under Article 85(3) EEC.

## Decision

- Article 85(1) EEC applies where parallel conduct originates in an agreement and persists after formal termination, as long as the agreement continues to produce economic effects.
- Article 85(1) EEC can apply to a set of agreements between a dominant distribution agency and publishers when the practical effect is that approval of retail outlets is controlled by the agency or a body it establishes.
- Selective distribution is not automatically unlawful, but it is permissible only when based on objective qualitative criteria applied uniformly and without discrimination; quantitative limits and discretionary foreclosure-type approval mechanisms fall within Article 85(1).
- Resale price maintenance in the context of the distribution system is ordinarily caught by Article 85(1).
- Potential compatibility through Article 85(3) depends on a Commission determination; national courts assess infringement under Article 85(1) but do not grant exemptions under the then-operative exemption framework.

## Legal Principles

- Competition law targets the economic effects of coordination, not the formal legal status or label of the arrangements; expired agreements may still be caught if their effects persist.
- A selective distribution system complies with Article 85 only if reseller selection uses objective qualitative criteria, applied consistently and non-discriminatorily.
- Where one intermediary effectively controls access to retail outlets for most relevant products, the resulting foreclosure effect is a restriction of competition under Article 85(1).
- Resale price maintenance is generally a restriction of competition under Article 85(1), including in vertical distribution arrangements.
- Sector-specific features (e.g., press logistics and returns) may be relevant to an Article 85(3) analysis, but they do not remove the conduct from Article 85(1).
- National courts determine whether Article 85(1) is infringed in disputes before them; the Commission assesses whether Article 85(3) exemption conditions are satisfied.

## Conclusion

The court held that competition rules apply to continuing market coordination rooted in expired agreements and that a press distribution scheme giving a dominant distributor control over retail approval and fixed resale prices generally restricts competition under Article 85(1), with any exemption under Article 85(3) requiring Commission assessment.


SA Binon & Cie v. SA Agence & Messageries de la Presse (Case 243/83), 1985 E.C.R. 2015 (C.J.E.C. 1985)