{"id":6684,"date":"2026-03-04T11:35:53","date_gmt":"2026-03-04T11:35:53","guid":{"rendered":"https:\/\/avocatbucuresti.ro\/?p=6684"},"modified":"2026-10-31T13:55:56","modified_gmt":"2026-10-31T13:55:56","slug":"distribution-and-exclusivity-agreements-risks-termination-competition-law","status":"publish","type":"post","link":"https:\/\/avocatbucuresti.ro\/en\/acorduri-de-distributie-si-exclusivitate-riscuri-reziliere-dreptul-concurentei\/","title":{"rendered":"Exclusive distribution agreements: rules and risks"},"content":{"rendered":"

An exclusive distribution contract can help the supplier and distributor to invest in a market, but the clauses regarding territory, customers, prices, and online sales must be drafted carefully. Competition rules do not automatically prohibit exclusivity: the assessment depends on the distribution structure, market shares, the content of the clauses, and the effects of the agreement.<\/p>\n

What is exclusive distribution and selective distribution?<\/h2>\n

In exclusive distribution, the supplier reserves a territory or a group of customers for itself or for a maximum of five buyers and can limit the active sales of the other buyers to that area or group. Active sales imply that the distributor targets customers through direct contacts or targeted advertising.<\/p>\n

In a selective distribution system, the supplier sells only to selected distributors based on established criteria, and these distributors undertake not to resell the products to unauthorized distributors within the system\u2019s reserved territory. The criteria must be clear and applied consistently. Exclusive and selective systems are defined by Article 1 of Regulation (EU) 2022\/720.<\/p>\n

When the contract for category exemption can be applied<\/h2>\n

Regulation (EU) 2022\/720 provides for an exception on a category basis for certain vertical agreements from the prohibition in Article 101(1) TFEU. In general, the market share of the supplier in the market it sells to and the market in which it purchases from must not exceed 30%, and the agreement must not contain serious restrictions provided for in Article 4.<\/p>\n

The 30% threshold is not a general certification that any contract is legal. If the threshold is exceeded or a serious restriction appears, the agreement does not benefit from the category exemption and must be analyzed individually in relation to Article 101 of the TFEU and, in Romania, Article 5 of the Law on Competition No. 21\/1996. This does not automatically mean that the entire contract is null and void or prohibited; what matters is the concrete context and whether the conditions for any individual exemption are met.<\/p>\n

Clauses requiring special attention<\/h2>\n

The resale price<\/h3>\n

The supplier can recommend a price or can set a maximum price, if these do not actually become fixed or minimum prices through pressures, threats, incentives or penalties. A clause that prevents the distributor from independently setting its resale price can be a serious restriction and can remove the agreement from the category exemption.<\/p>\n

Territories, customers and passive sales<\/h3>\n

Exclusivity allows, under certain conditions, the protection of a reserved territory against active sales by other distributors. An unsolicited request from a customer and the sale made in response to it usually constitute passive sales; the general prohibition of such sales can be a serious restriction. The regulation provides for limited exceptions, including for some situations where the distributor sells to unauthorized distributors in a territory with selective distribution.<\/p>\n

Online sales<\/h3>\n

The contract can establish quality standards for online presentation, after-sales services or payment security. However, the restrictions must not hinder the effective use of the internet for product sales or eliminate, as their objective, a complete channel of online advertising. A proper analysis distinguishes between quality criteria and measures that actually block access to customers or territories.<\/p>\n

Non-competition obligations and minimum purchases<\/h3>\n

In the sense of the Regulation, a non-competition obligation also includes the obligation for the buyer to purchase from the supplier more than 80% of the total relevant purchases. Unspecified or longer obligations of five years are excluded from the category exemption, with limited exception for the supplier\u2019s premises. This does not automatically transform the clause or the entire contract into null and void; an individual assessment of the effects and the other conditions may be necessary.<\/p>\n

Drafting and termination of the contract<\/h2>\n

The contract should precisely define the products, territory and customer group, the calculation and review method of market quotas, the types of restricted sales, the rules for online orders, the duration of exclusivity, the commercial objectives and the consequences of non-execution. A wording such as \u201ethe distributor may not sell outside the territory\u201d can cover both active sales and responses to unsolicited requests.<\/p>\n

Before termination, check the duration of the contract, the notification obligations, the deadlines for remedy, and the commission agreement, if any. Article 1552 of the Civil Code allows written notice of termination under the conditions provided by law, including when the parties have agreed on this method or the conditions of delay are met. The termination of contracts with successive execution has effects for the future, according to Article 1554, paragraph (3). Termination must also be analyzed in terms of inventories, pending orders, licenses, trademarks, know-how, and clauses that survive termination.<\/p>\n

Checklist for companies<\/h2>\n