Case C-50/26, Samsung Electronics Benelux – must a price-fix hurt the market too?
Resale price maintenance is the textbook vertical restriction “by object”. Samsung’s appeal asks whether the textbook is still right — whether a supplier’s influence over its own retailers’ prices is harmful enough in itself, or only if the brand’s competitors are affected.
Facts
Samsung Electronics Benelux is challenging, before the College van Beroep voor het bedrijfsleven — the Netherlands’ final court in economic administrative matters — a decision of the Autoriteit Consument en Markt finding an infringement of Article 101(1) TFEU in Samsung’s dealings with retailers of its products. The referring court’s questions concern the test for a restriction of competition “by object” in a vertical relationship: whether, in examining the economic and legal context, a court must look only at the harm to competition between retailers of the same brand — intra-brand competition — or also at the harm to competition between brands, and if the latter, whether that examination is required in every case, including for hardcore restrictions, and how far it must go. The notice gives no further facts.
Questions Referred
1. Must Article 101(1) TFEU be interpreted as meaning that, in order to establish the existence of a (vertical) restriction by object, the investigation of the economic and legal context must take into account not only whether an agreement or concerted practice between a supplier and retailers of the same brand in itself presents a sufficient degree of harm to competition between those retailers (intra-brand competition), but also, in principle, whether that agreement or concerted practice in itself presents a sufficient degree of harm to competition between different brands on the market or markets concerned (inter-brand competition)?
If question 1 is answered in the affirmative:
2. (a) must there be an examination in all cases of whether the agreement or concerted practice in itself also presents a sufficient degree of harm to inter-brand competition, or is this not necessary in specific types or categories of cases, for example, in the case of hardcore restrictions, and (b) can that part of the investigation of the economic and legal context be limited, for example, to the market share of the brand and its development during the implementation of the agreement or concerted practice, or must it also extend to other competition parameters, depending on the circumstances of the case?
Sources
OJ notice C/2026/2362 (EUR‑Lex) · Case file on CURIA · Super Bock, C‑211/22 (ECLI:EU:C:2023:529)
Comment
The reference follows directly from Case C‑211/22, Super Bock Bebidas (ECLI:EU:C:2023:529), where the Court held that a vertical agreement fixing minimum resale prices may be found to restrict competition by object “only after having determined that that agreement presents a sufficient degree of harm to competition, taking into account the nature of its terms, the objectives that it seeks to attain and all of the factors that characterise the economic and legal context of which it forms part”. Super Bock refused to treat resale price maintenance as automatically “by object” simply because the block exemption lists it as a hardcore restriction. What it did not say is what the contextual assessment must look at. Samsung’s argument fills the gap in its own favour: competition, it says, means competition on the market, and a market with many television brands is not harmed by one brand’s dealers charging the same price. The authority’s answer is that Article 101 protects the competitive process at every level, and that retailers of a brand competing on price is part of that process whether or not other brands are affected.
The second question is where the practical consequences lie. If inter-brand harm must be examined in every case, then a supplier with a modest market share has a ready defence to any resale pricing charge, and a great deal of national enforcement — resale price maintenance is the most common vertical infringement pursued by national authorities — would have to be re-argued on market-share evidence. If it need not be examined for hardcore restrictions, Super Bock’s contextual requirement becomes largely formal for the cases that matter most. The referring court’s question 2(b) shows it is aware of the middle course: a limited inter-brand look, at the brand’s market share and its evolution, without a full market analysis.
The Court’s recent tendency has been to narrow the “by object” category and insist on context, while refusing to convert the context inquiry into an effects analysis by another name. Samsung tests where that line runs in vertical cases. A ruling that intra-brand harm suffices would keep resale price maintenance where enforcers have always placed it; a ruling that inter-brand harm must be shown would move it a long way towards the effects-based world the Court has so far reserved for less obvious restrictions. Either way, the answer will apply to every distribution agreement in the Union.