Supply constraints imposed by large manufacturers have survived four decades of single market law, and the European Commission now wants a tool that does not depend on proving a cartel. A public consultation on unjustified territorial supply constraints closes this week, twelve weeks after officials opened it on 28 May, and the responses will shape whether Brussels writes a standalone instrument or leaves the problem to competition enforcers who have largely failed to solve it.
The practice itself is simple to describe and hard to police. A manufacturer sells the same shampoo, the same chocolate spread or the same washing powder to a retailer in one member state at one price, and refuses to supply a buyer from another. Distributors report differentiated packaging, country-specific barcodes, refusals to deal and threats to withdraw promotional support. Each of those steps looks commercially defensible in isolation. Taken together, they partition a market that the treaties describe as single.
The Commission’s consultation notice places the file among the so-called Terrible Ten, the barriers the Single Market Strategy of May 2025 identified as the most damaging to intra-EU trade. That framing matters. It moves the argument out of competition policy, where a regulator must show market power and an anticompetitive effect, and into internal market law, where the question becomes whether a practice fragments the union regardless of who holds the dominant position.
National authorities have started to line up behind that shift. Several competition agencies told the Commission in mid-August that they support action against unjustified constraints, and the European Competition Network has discussed the file at working level. Their enthusiasm carries an admission: the agencies have investigated these arrangements for years and produced few decisions. Belgium, the Netherlands and the Nordic countries have each published studies documenting price gaps for identical goods, and each study ended with the same conclusion that the evidence sits below the threshold Article 101 requires.
Retailers put the cost of that gap at roughly fourteen billion euros a year for consumers, a figure the sector has repeated since 2020 and which the Commission has never formally endorsed. Manufacturers dispute both the number and the premise. They argue that prices differ because national taxes, wage costs, recipe reformulation and promotional calendars differ, and that a purchasing regime forcing them to serve any buyer at any border would strip them of the ability to price for local conditions. Smaller producers add a practical objection: a firm that supplies three countries cannot easily verify where a wholesaler intends to resell.
The design questions now facing officials are more difficult than the diagnosis. An ex ante rule needs a definition of what makes a constraint unjustified, and every candidate definition either sweeps in ordinary distribution agreements or collapses into the competition test the Commission wants to escape. Enforcement raises a second problem. National market surveillance bodies already carry heavy workloads under product safety and digital rules, and giving them a new mandate without staff produces a paper right.
Timing adds pressure. The Commission has signalled that a Single Market omnibus will arrive during the autumn, and the department leading the file wants a proposal ready to travel with it. Anything slower risks landing in a legislature already crowded with the next budget cycle. Wholesalers, who buy for resale and feel the constraint most sharply, have used the consultation to press for a rebuttable presumption that a refusal to supply across a border is unlawful unless the manufacturer proves an objective reason.
Whether that survives contact with the legal service is another matter. Reversing the burden of proof in commercial relationships is unusual in EU law outside consumer protection, and manufacturers will litigate it. What the consultation has already established is a political point that officials could not make five years ago. Territorial supply constraints are no longer treated as a competition puzzle with an incomplete evidence base. They are treated as a single market failure, and the Commission has decided to fix them with the tools of the internal market rather than the tools of antitrust.
