Keywords
Summary

Keywords

1. Competition - Agreements, decisions and concerted practices - Adverse effect on competition - Brewery agreements - Assessment criteria - Accessibility of the market - Contribution by the agreement at issue to the closing off of market positions because of the existence of a large number of similar agreements - Effect of the duration of the agreement at issue

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2. Competition - Agreements, decisions and concerted practices - Adverse effect on competition - Brewery agreements - Assessment criteria - Accessibility of the market - Attribution of a brewery's network of agreements not in itself contributing to closure of the market to national breweries' networks of agreements contributing to that closure - Conditions

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

Summary

1. In order to assess the extent to which the beer supply agreements concluded by a brewery contribute to the cumulative effect of closing off the market produced by all such agreements, the position of the contracting parties in the market must be taken into consideration. The contribution also depends on the duration of the agreements. If it is manifestly excessive in relation to the average duration of agreements generally concluded in the relevant market, the individual agreement falls under the prohibition laid down in Article 85(1) of the Treaty (now Article 81(1) EC). A brewery holding a relatively small share of the market which ties its sales outlets for many years may contribute to foreclosure of the market as significantly as a brewery with a comparatively strong position in the market which regularly frees its outlets at frequent intervals.

( see para. 76 )

2. For a brewery's network of agreements, which does not in itself contribute significantly to foreclosure of the market, to be attributed, for the purposes of the analysis of the applicability of Article 85(1) of the Treaty (now Article 81(1) EC), to the national breweries' networks of agreements, which do contribute significantly to foreclosure, two conditions must be satisfied.

First, the beer supply agreements concluded between the wholesaling brewery and the supplying breweries, namely the national breweries - the upstream agreements - may be regarded as forming part of the supplying breweries' networks of agreements if they contain terms which may be analysed as a purchasing obligation (commitments to purchase minimum quantities, stocking obligations or non-competition obligations). It follows that a supply contract which does not contain a purchasing obligation, in whatever form, does not form part of the network of agreements of a supplying brewery, even if it relates to a substantial proportion of the beer sold by the establishments tied to the wholesaling brewery.

Next, for not only the upstream agreements but also the agreements concluded between the wholesaling brewery and the establishments tied to it - the downstream agreements - to be attributed to the supplying breweries' networks of agreements, it is also necessary for the agreements between the supplying breweries and the wholesaling brewery to be so restrictive that access to the wholesaling brewery's network of downstream agreements is no longer possible, or at least very difficult, for other breweries from the Member State concerned or elsewhere.

If the restrictive effect of the upstream agreements is limited, other breweries are able to conclude supply agreements with the wholesaling brewery and so enter the latter's network of downstream agreements. They are thus in a position to have access to all the establishments in that network without it being necessary to conclude separate agreements with each outlet. The existence of a network of downstream agreements thus constitutes a factor which can promote penetration of the market by other breweries.

( see paras 104-108 )