Summary of Commission Decision

of 13 May 2019

relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union

(Case AT.40134 — AB InBev Beer Trade Restrictions)

(notified under document C(2019) 3465)

(Only the English text is authentic)

(2019/C 407/06)

On 13 May 2019, the Commission adopted a decision relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1. INTRODUCTION

(1)

The Decision is issued pursuant to Article 102 of the Treaty on the Functioning of the European Union (the ‘Treaty’) and addressed to Anheuser-Busch InBev NV/SA, and two of its subsidiaries (hereafter ‘AB InBev’). AB InBev is the world’s largest beer brewer, selling its beer brands in more than 100 countries.

(2)

Between 9 February 2009 and 31 October 2016, AB InBev participated in a single and continuous infringement, which involved the implementation of four abusive restrictions. By intentionally restricting imports of its beer products into Belgium, AB InBev aimed to maintain higher prices and profits for its beer products in Belgium.

2. CASE DESCRIPTION

2.1. Procedure

(3)

The Commission launched this case ex-officio at the end of 2014 based on its own market monitoring.

(4)

In November 2015, the Commission carried out unannounced inspections at AB InBev's premises in Belgium and the Netherlands.

(5)

On 30 June 2016, the Commission initiated proceedings against AB InBev with a view to taking a decision under Chapter III of Council Regulation (EC) No 1/2003.

(6)

On 30 November 2017, the Commission adopted a Statement of Objections addressed to AB InBev alleging that it had engaged in restrictive practices constituting an abuse of dominance within the meaning of Article 102 TFEU.

(7)

Subsequently, AB InBev submitted a formal offer to cooperate in view of the adoption of a decision pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 (‘settlement submission’).

(8)

The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 3 May 2019.

(9)

The Commission adopted the Decision on 13 May 2019.

2.2. Summary of the infringement

(10)

The Decision establishes that from 9 February 2009 until 31 October 2016, AB InBev pursued an abusive strategy to restrict sales of its beer products supplied to its off-trade customers from the Netherlands into Belgium by implementing four restrictive practices in relation to off-trade customers, notably including:

(a)	limiting the volumes of beer products supplied to a wholesaler in the Netherlands to restrict imports of these products into Belgium;

(b)	implementing changes in the packaging of beer products supplied to off-trade customers in the Netherlands to restrict imports of these products into Belgium;

(c)	making the supplies to a retailer in Belgium of beer products, not available in the Netherlands, conditional on the purchase in Belgium of other beer products also available in the Netherlands; and

(d)	making promotions for beer products offered to a retailer in the Netherlands conditional upon not offering the promotions in Belgium.

(11)

These practices restricted competition within the meaning of Article 102 of the Treaty by their very nature as they aimed to partition the Single Market along national borders.

2.3. Addressees and duration

(12)

The Decision is addressed to Anheuser-Busch InBev NV/SA, and its two wholly-owned subsidiaries, InBev Belgium Bvba/Sprl and InBev Nederland NV.

(13)

The duration of the single and continuous infringement spans the period from 9 February 2009 until 31 October 2016.

2.4. Remedies

(14)

The Decision requires AB InBev to include mandatory food labelling information both in Dutch and French, as opposed to just one language, on the packaging of all its current and new products of 19 specific beer brands in Belgium, France and the Netherlands.

(15)

This remedy was offered by AB InBev in its settlement submission and the Decision makes it binding for a period of five years from the date of notification of the Decision. AB InBev acknowledges that the remedy is suitable and proportionate in the framework of the cooperation procedure to ensure that the practice of changing the packaging of its beer products is not reiterated. The remedy should also make it easier for off-trade customers to export the products between the Netherlands, Belgium and France, thereby enhancing the possibility of cross-border trade.

2.5. Fines

(16)

The Decision applies the 2006 Guidelines on Fines. (2)

2.5.1. Basic amount of the fine

(17)

In setting the fines, the Commission took into account the value of sales in 2015 for Belgium and the Netherlands, which is the last full business years of AB InBev’s participation in the infringement.

(18)

The Commission took into account that the abusive conduct consists of an intentional ‘by object’ violation of a clear, fundamental rule not to partition the Single Market along national borders. Moreover, the infringement concerns products that have a direct impact on consumers. Taking into account these factors and in light of the specific circumstances of the case the proportion of the values of sales to be taken into account is set at 10 %.

(19)

The Commission took into account the duration of the single and continuous infringement, as mentioned above.

2.5.2. Aggravating or mitigating circumstances

(20)

There are no aggravating or mitigating circumstances in this case.

2.5.3. Specific increase for deterrence

(21)

The fine is increased by a 1,1 multiplier to ensure a deterrent effect on AB InBev, an undertaking with a particularly large worldwide turnover beyond the sales of goods and services to which the infringement relates.

2.5.4. Application of the 10 % turnover limit

(22)

The calculated fine does not exceed 10 % of AB InBev’s worldwide turnover.

2.5.5. Reduction of the fine in view of cooperation

(23)

In order to reflect the effective cooperation provided by AB InBev, in particular its acknowledgment of the infringement and its offer of a remedy to prevent reiteration of the practice of changing the packaging of its beer products, the amount of the fine is reduced by 15 % pursuant to point 37 of the Guidelines on Fines.

3. CONCLUSION

(24)

AB InBev infringed Article 102 of the Treaty by participating in a single and continuous infringement to limit cross-border trade of beer products from the Netherlands to Belgium. The infringement consisted of the implementation of four practices in relation to its off-trade customers that aimed at maintaining higher prices and profits for AB InBev’s beer products in Belgium.

(25)

The final amount of the fine imposed on AB InBev pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 for the single and continuous infringement amounts to EUR 200 409 000.

(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(2) OJ C 210, 1.9.2006, p. 2.