Commission Decision
of 5 December 2001
relating to a proceeding under Article 81 of the EC Treaty
(Case IV/37.614/F3 PO/Interbrew and Alken-Maes)
(notified under document number C(2001) 3915)
(Only the Dutch and French versions are authentic)
(2003/569/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 17 of 6 February 1962, the first Regulation implementing Articles 81 and 82 of the Treaty(1), as last amended by Regulation (EC) No 1/2003(2), and in particular Article 15(2) thereof,
Having regard to the Commission's decision to initiate proceedings in this case, taken on 29 September 2000,
Having given the undertakings concerned the opportunity of being heard on the objections raised by the Commission, in accordance with Article 19(1) of Regulation No 17 and Article 2 of Commission Regulation (EC) No 2842/98(3),
Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions,
Having regard to the final report of the Hearing Officer in this case(4),
Whereas:
1. INTRODUCTION
(1) This case concerns long-term and complex restrictive agreements relating to the Belgian market in beer for consumption both on the premises ("the on-trade") and off the premises ("the off-trade"). Interbrew NV and Alken-Maes NV, the largest and the second-largest suppliers to the Belgian beer market, consulted together and concluded agreements concerning a general non-aggression pact; prices and promotions in the off-trade; customer sharing in the on-trade (both the "traditional" on-trade and national customers); the restriction of investment and advertising in the on-trade; and a new price structure for the on-trade and the off-trade. They shared information about sales to the on-trade and the off-trade. They sought to take some of these measures further through the Confederation of Belgian Brewers.
(2) There was separate consultation between Interbrew NV, Alken-Maes NV and the breweries NV Brouwerij Haacht and Martens NV concerning private-label beer, in particular with regard to customers and prices, and an exchange of information regarding private-label beer between those four brewers.
2. THE BELGIAN BREWING INDUSTRY
2.1. The market for beer in Belgium
2.1.1. Supply
(3) The number of firms engaged in brewing in Belgium has been falling slowly. In 1991 there were 76 brewers belonging to the Confederation of Belgian Brewers (Confederatie der Brouwerijen van België/Confédération des Brasseries de Belgique or "CBB"). At the beginning of 2000 the figure was 68(5). Some of these brewers own more than one brewery each.
(4) Although the number of breweries operating in Belgium is relatively high, brewing is in fact concentrated in the hands of a few firms. In 1998 the five biggest brewers in Belgium accounted for more than 80 % of total output. In the same year the two biggest brewers, Interbrew NV and Alken-Maes NV, together brewed about 70 % of the total volume of beer sold in Belgium(6).
(5) As well as the lager beer known as "Pils", "Pilsener" or "Pilsner", there is a great variety of speciality beers brewed in Belgium, including abbey and Trappist beers, gueuze and kriek, white beers, ales, seasonal beers and many local beers(7).
2.1.2. Demand
(6) Total beer consumption in Belgium has been falling slowly; in 1998 it was slightly over 10 million hectolitres, an average drop of 1,6 % per annum from the 1993 figure(8). About two thirds of total consumption consists of Pils. Of the speciality beers that make up the remainder, the most important are amber ale, abbey beer and white beer, each of which has a share of total consumption of 5 % to 6 %(9). Between 1993 and 1998 production of beer in Belgium declined by an average 0,4 % per annum(10).
(7) About 60 % of total beer consumption takes place on the premises in one of approximately 50000 outlets; this channel is hereinafter referred to as "the on-trade", and in Belgium is usually known in both Dutch and French as the "horeca" sector, an acronym for "hotels, restaurants and cafés". Beer is distributed to such outlets mainly by wholesalers specialising in the on-trade. The number of beer wholesalers in Belgium has been falling in recent years as a result of mergers, takeovers and closures, but the number in operation is still relatively large. Estimates range from 1200(11) to 1800(12). Some volumes are also distributed direct to the trade by the brewers themselves.
(8) The remaining 40 % or so is sold by food retailers for consumption off the premises; this is hereinafter referred to as "the off-trade", and in Belgium is usually known as the "food" or "retail" trade. As well as the brewers' brands, an increasingly important role is played by retailers' own brands, known in Belgium by the English term "private-labels"; this is so especially in the Pils segment. In 1998 private-label beer amounted to 550000 hl, accounting for 5,5 % of total Belgian consumption(13).
(9) Thus the main developments in Belgium are: gradually declining demand; a slow decline in the number of brewers, wholesalers and drinks outlets; a growth in the importance of off-trade sales as compared with sales through the on-trade; and within the off-trade, a growth in the importance of private-label beer.
2.1.3. Price regulation
(10) Until 1 May 1993 the Belgian beer trade was subject to a Ministerial Order requiring price increases to be submitted to the competent minister. Brewers had to obtain the authorisation of the minister for any increase in the price of beer; they could apply either individually or collectively through a trade association(14). Applications for price increases were in fact submitted on the brewers' behalf by the CBB. The application had to provide a detailed statement of the reasons for the increase sought, giving figures, and a detailed list of existing prices and certain rebates. The annual accounts of the firms concerned also had to be attached. The CBB last submitted an application for a price increase on 23 December 1992. The minister allowed that increase on 6 February 1993, subject to the condition that the system of rebates remained unchanged and that no further price increases were carried out in 1993.
2.2. Brewers
(11) Annex II shows the market shares of the four Belgian brewers concerned for the period 1992 to 98 (in volume, rounded to whole figures). Market shares are given for the market as a whole and for the Pils segment. A distinction is also made on the basis of the distribution channel, between the on-trade and the off-trade.
2.2.1. Interbrew
(12) Interbrew NV ("Interbrew") is by far the largest Belgian brewer. Its main brands in Belgium are Jupiler and Stella Artois (Pils), Hoegaarden (white beer) and Leffe (abbey beer). All four of these are among the ten biggest selling brands on the Belgian market. Interbrew also has breweries in many other countries, including, in the European Union, the Netherlands, the United Kingdom and France. Outside the European Union Interbrew operates in Canada, where it took over the Canadian brewer Labatt in 1995, and in Eastern Europe and Asia. Interbrew is one of the ten largest brewers in the world. It has had a stock exchange listing since 1 December 2000. In the year 2000 its worldwide turnover was EUR 8605 million. In the same year its total turnover in beer in Belgium was EUR [ &gt;500 million](15), of which EUR [&lt; 5 million]; was derived from private-label beer.
2.2.2. Danone and its subsidiary Alken-Maes
(13) Brouwerijen Alken-Maes NV ("Alken-Maes") is the number two on the Belgian market; its brands include Maes and Cristal (Pils), Grimbergen (abbey beer), Ciney (a regional beer) and Brugs Tarwebier (white beer). In the year 2000 Alken-Maes' worldwide turnover amounted to EUR 120,78 million. In the same year its turnover in beer in Belgium totalled EUR [ &gt;100 million]. In 2000, a turnover of EUR [&lt; 5 million] was achieved for private-label beer in Belgium.
(14) Alken-Maes was set up in 1988 as a result of a merger between two brewers, namely Alken-Kronenbourg, which had formerly belonged to the French BSN group, and Maes. In 1992 BSN acquired a majority stake in the merged Alken-Maes, and replaced Alken-Maes's management; in 1994 BSN changed its name to Groupe Danone SA ("Danone"). The brewer Kronenbourg, which operates in France, also belonged to Danone. In the year 2000 Danone sold its beer operations to the UK Scottish and Newcastle group. In 2000 Danone's worldwide turnover was EUR 14287 million. In 1999 its turnover in beer in Belgium was EUR [ &gt;100 million](16).
2.2.3. Martens
(15) Martens NV ("Martens") produces mainly private-label Pils for large retail chains such as Aldi. It brews its own beer under the Sezoens brand. It also imports the low-price Karlsberg brand from Germany (not to be confused with the Danish Carlsberg brand). In the year 2000 Martens' worldwide turnover was EUR 33598507. Of this figure, sales of beer in Belgium accounted for EUR [&lt; 50 million]. Martens' turnover from private-label beer in Belgium was EUR [ &gt;5 million] in 2000.
2.2.4. Haacht
(16) NV Brouwerij Haacht ("Haacht") is essentially a Pils producer. Its main brand is Primus. In the year 2000 its worldwide turnover was EUR 69416371, of which EUR [&lt; 50 million] was accounted for by beer sold in Belgium. Haacht's turnover from private-label beer in Belgium was EUR [ &gt;5 million] in 2000.
2.2.5. The trade association CBB
(17) All of the brewers listed above are members of the trade association, the CBB. The CBB represents the interests of its members. Day-to-day business is handled by a manager. Its activities are distributed between working parties and committees on which its members are represented.
2.3. Trade between Member States
(18) In assessing the available statistics, one factor must be borne in mind. According to the market research bureau Canadean, it is difficult to discern the real pattern of international trade from the official statistics published by the Belgian central bank, the Nationale Bank/Banque Nationale. At the beginning of 1995, for example, Interbrew took over the Dutch Oranjeboom brewery. Since then, in order to maximise production efficiencies, Interbrew has exported some volumes of beer in bulk from Belgium to the Netherlands for packaging, and reimported the packaged goods into Belgium for consumption. For want of a better alternative, however, Canadean nevertheless uses the central bank figures(17). In response to enquiries, the CBB has likewise referred to the central bank statistics, which are also published in its newsletter Het Brouwersblad/Le Journal du Brasseur(18). Thus the statistics given below are not to be understood as a precise measurement - no precise measurement is available - but only as indicative.
(19) According to Canadean, between 1993 and 1998 imports of beer into Belgium rose from 454000 hl to 916000 hl, which is about 9 % of total consumption. In 1998 something over 80 % of this came from other Member States. The countries from which most was imported were the Netherlands, Denmark, the United Kingdom, Germany and France(19). Interbrew states that over the period 1993 to 98 imports into Belgium rose from 337453 hl to 731202 hl. A study carried out for the CBB in 1994 by the consultancy firm Arthur D. Little estimates exports from France to Belgium at 60000 hl. The terms of reference of that study make it clear that there were concerns within the CBB at the time regarding parallel imports(20). Parallel importing occurs, for example, where a Belgian wholesaler buys Pils under Interbrew's Jupiler brand from Interbrew's French establishment, and then sells it in Belgium. The Arthur D. Little report also shows that in 1994 ex-brewery prices were substantially higher in Belgium than in France(21).
(20) There are a number of documents dating from 1993 which describe the impact of parallel imports on Interbrew, and the direct link between price differences in Belgium and France and these imports. The possible effect is stated to be a "destabilisation of the entire Belgian beer market". It is also said that "price setting, rebate policy ... is not a domestic question, but increasingly has to be discussed on an international basis."(22)
(21) Belgium is a major exporter of beer. Between 1993 and 1998 total exports rose from 3,6 million hl to over 4,8 million hl per annum. Over 90 % of this was exported to other Member States. The countries to which most was exported were France, the Netherlands, Germany, Italy and the United Kingdom(23).
3. PROCEDURE
(22) On 26 and 27 October 1999 inspections were carried out under Article 14(3) of Regulation No 17 at the offices of Alken-Maes in Waarloos and the CBB in Brussels.
(23) On 11 November 1999 requests for information were sent under Article 11 of Regulation No 17 to Interbrew, Alken-Maes and the CBB. The Commission had already taken copies of documents in the course of a separate proceeding, during an inspection it carried out at Interbrew's premises in Leuven on 13 and 14 July 1999, and Interbrew was now specifically asked to produce certain documents to the Commission afresh, in accordance with the established case law of the Court of Justice of the European Communities(24). These documents contained information which led to the inspections carried out in October 1999.
(24) The replies of Alken-Maes, Interbrew and the CBB were received on 10 December, 23 December and 24 December 1999 respectively.
(25) On 27 December 1999 Alken-Maes declared that it was invoking the Commission notice on the non-imposition or reduction of fines in cartel cases(25).
(26) On 10 January 2000 a request for information was sent to the Belgian Ministry of Economic Affairs. The Ministry replied by letter of 4 February.
(27) On 12 January 2000 a supplementary request for information was sent to the CBB under Article 11 of Regulation No 17. The CBB supplied the information requested by letter on 1 February.
(28) In letters of 14 and 19 January 2000 Interbrew supplied information supplementing its letter of 23 December 1999. In the light of this supplementary information the Commission sent an informal supplementary request for information to Interbrew by fax on 21 January. Interbrew replied by letter of 2 February. Interbrew again sent additional information by letters dated 8 and 28 February.
(29) On 29 February 2000 Interbrew submitted a statement relating to the Belgian market. As Alken-Maes had already done, Interbrew sent this statement to the Commission invoking the Commission notice on the non-imposition or reduction of fines in cartel cases(26).
(30) By letter dated 7 March 2000 Alken-Maes supplemented and clarified its statement of 27 December.
(31) On 22 March 2000 the Commission sent requests for information under Article 11 of Regulation No 17 to Alken-Maes, Haacht and Martens. Alken-Maes and Haacht replied on 5 April, and Martens on 6 April.
(32) On 3 April 2000 the Commission carried out an inspection under Article 14(2) of Regulation No 17 at Interbrew's offices in Leuven.
(33) On 14 April 2000 the Commission sent requests for information under Article 11 of Regulation No 17 to Danone, the parent company of Alken-Maes, and to Heineken NV, the Netherlands-based brewer. Danone and Heineken supplied the information requested in letters dated 10 and 11 May.
(34) In addition to the inspections and correspondence described above, a number of meetings took place in the course of the investigation between members of the Directorate-General for Competition and representatives of Interbrew, Alken-Maes and the CBB.
(35) On 29 September 2000 the Commission initiated proceedings in this case and approved a statement of objections addressed to the undertakings who are likewise addressees of the present Decision. All of the parties submitted written observations on the Commission's objections. None requested a hearing, and accordingly no hearing took place.
(36) On 21 December 2000 Interbrew supplied two further documents to complete the file on the case; they concerned two agreements with Alken-Maes concluded in connection with the other bilateral agreements between Interbrew and Alken-Maes. Alken-Maes and Danone were given the opportunity to comment on this letter from Interbrew and its annexes.
4. DESCRIPTION OF THE INFRINGEMENTS
4.1. Preliminary observation: the written evidence
(37) The account of the facts set out below is based on the evidence assembled from the information gathered at the inspections described above, from the replies to requests for information, and from the information supplied voluntarily by the parties.
(38) In the evidence available to the Commission there are frequent references to employees or former employees of the undertakings to which the proceedings relate. In the Decision these names have been replaced by indications of the positions held by those people at the time. Where, as a consequence, a quotation from the evidence presented here differs from the corresponding quotation in the statement of objections, a reference is provided to the relevant paragraph of the statement of objections for the benefit of the addressees of the Decision.
4.2. Introduction and summary
(39) The following recitals set out the facts of long-term and complex restrictive agreements relating to the Belgian market in beer for consumption both on and off the premises. Interbrew and Alken-Maes, the largest and the second-largest suppliers to the Belgian beer market, consulted together and concluded agreements concerning prices and promotions in the off-trade, the sharing of customers in the on-trade, the restriction of investment and advertising in the on-trade, and their pricing structures (section 4.3); they also shared information on their sales figures (section 4.4). They sought to take some of these measures further through the Confederation of Belgian Brewers (section 4.5). There was separate consultation and an exchange of information between Interbrew, Alken-Maes and the brewers Haacht and Martens concerning private-label beer (section 4.6).
4.3. The bilateral agreements between Interbrew and Alken-Maes regarding market shares and prices
4.3.1. Preliminary observations
(40) From the end of 1992 at the latest, and in any event up to and including the beginning of 1998, there was a succession of meetings and other forms of contact between representatives of Interbrew and representatives of Danone or of Alken-Maes, which was a subsidiary of Danone operating in Belgium. Most of these meetings between Interbrew and Danone representatives are irrelevant to this Decision, because they were concerned essentially with possible mergers and takeovers and with possible cooperation between these undertakings on markets outside Belgium.
(41) The description of meetings and other forms of contact set out below is therefore not intended to give a complete picture of all the contacts that took place between representatives of the undertakings concerned. It covers only those contacts which are relevant to this Decision and which are documented. Other contacts will be referred to only where this is felt to be necessary for an accurate account of the context in which the relevant and documented contacts took place.
4.3.2. The facts: chronology
4.3.2.1. The period from the end of 1992 until 1993
(42) Summary
At the end of 1992 and in the course of 1993 there was regular contact to discuss the off-trade, and agreements were reached regarding prices. There was also discussion of a reduction of marketing investments. Interbrew used the code name "Université de Lille" for this process(27). It was said that Danone wanted to widen the existing cooperation between Interbrew and Alken-Maes. Within Interbrew there was initially a reluctance to widen cooperation, motivated in part by the competition rules. In addition, Interbrew felt that as the market leader it was in a position to take certain decisions alone.
(43) On 17 November 1992 there was a meeting between representatives of Alken-Maes, Interbrew and Kronenbourg/Danone. At this meeting the new general manager of Alken-Maes was introduced to Interbrew(28).
(44) On 28 January 1993 Interbrew's manager for the off-trade in Belgium reported to Interbrew's general manager for Belgium on a "meeting with beer wholesalers"(29):
"After a great deal of talk we reached the following agreements:
- ITW and Maes will try to raise permanent promotion prices (the GIB retail chain's policy) as rapidly as possible from the present rate to BEF 285 initially and BEF 295 in a second stage ... [NB: This is doubtless the price of a crate of Pils],
- Promise not to pay for any promotion or advertising brochures for crates of Pils in the next three months if the minimum price is not complied with. Extension of this after a meeting in three months."
In its reply to the statement of objections, Danone stated that this meeting was a meeting between the brewers and the federation of beer wholesalers which took place on 28 January 1993.
(45) On 12 March 1993, in advance of a dinner with a representative of Danone (then called BSN), the interim Chief Executive Officer of Interbrew was informed in a memo from Interbrew's Executive Vice-President Core Market Beers Europe of the contacts that had taken place up to that time(30):
"There have been a few meetings between Mr ... [the chairman and general manager of Danone] and Mr ... [the previous CEO of Interbrew]. What transpired from those is the possibility of exploring closer cooperation ... Personally, I see Mr ... [the chairman and general manager of Kronenbourg, and general manager of Danone] through the Amsterdam Group a couple of times a year. The subject of 'cooperation' comes up now and again, however, there are some dangerous strings attached. I've discussed your meeting on March 16 with both our managers in France ... and in Belgium ...
3) Strategic area:
...
Belgium:
This is the trickiest part of your discussion. They probably want to increase 'cooperation' in Belgium. Mr ... forced us to talk as 'we needed some money', but we are most reluctant to do this as we want to avoid any problems under Articles 85 or 86 ...
Also, they have more to gain than we. I attach a memo showing what we have been talking about up until now, but so far, nothing concrete has been done. We are most reluctant to continue these discussions. I feel in Belgium, we should take the lead and make those decisions, others will follow if they are smart."
(31).
(46) The memo described as attached to the internal memo of 12 March 2000 is dated 18 February 1993; the subject is stated to be a "reduction of marketing spending with a view to improving our profitability in the short, medium and long term"(32). The code name used for this by Interbrew is "Université de Lille"(33). On 10 December 1992 and 19 January 1993 there were two internal meetings in Interbrew under this title(34).
(47) The memo records the following conclusions and recommendations:
"- Part of the cost of providing POS [point-of-sale] material to be transferred to wholesalers on a 50/50 basis, along with an increase in the price of glasses ...
- Advertising spending should ideally not exceed BEF 300 million in 1993, assuming that the largest competitor does not exceed BEF 140 million. This expenditure relates only to Pils, including NA [non-alcoholic] and Light ...
- Other parameters to be studied: costs of installation and maintenance of pumps, price policy in the off-trade, new pricing system ..."
(35)
(48) At the end of 1993 Interbrew's general manager for Belgium and the general manager of Alken-Maes met at the Duc d'Arenberg restaurant in Brussels(36).
(49) On 19 August 1993 the new CEO of Interbrew, who had previously been Interbrew's Executive Vice-President Core Market Beers Europe, stated as follows about the "93/94 Budget"(37): As far as the price increase is concerned, 4 % is a challenge ... Of course, we want you to do the 4 %. If you need help to convince Maes, let me know(38).
(50) On 2 November Interbrew's CEO had talks with the major retail chain [...]. The meeting is reported in a memo of 3 November 1993. The memo states as follows(39):
"[...] would appreciate an initiative on the part of Interbrew to make contact with [...] and [...] ([...] are the three largest Belgian supermarket chains) in order to arrive at a gradual increase in the price of beer and soft drinks to the level desired by ITW [Interbrew] ... If a consensus begins to emerge consideration will be given to the possibility of a three-way meeting ... I think it would be no bad idea if I was invited along to the top-level meeting with [...]. Only once initial contact has been established and an agreement is in prospect would I involve [Alken-Maes]. The initiative taken by Maes last year did not prove feasible: a) there was a lack of trust, but certainly also b) Maes was too small. This is something only ITW can do."
4.3.2.2. 1994
(51) Summary
In 1994 the contacts between Interbrew and Danone/Alken-Maes were extended. At a meeting on 11 May Danone put Interbrew under pressure: if the parties did not reach agreement in respect of the Belgian market, life would be made difficult for Interbrew on the French market. Interbrew did not accept Danone's demand that it transfer 500000 hl of beer to Alken-Maes, but it did not want war either, and the parties stayed in close contact with one another. At two meetings in 1994 the two general managers responsible for Belgium made preparations for a gentleman's agreement between the two brewers. Interbrew referred to this gentleman's agreement by the name "Université de Lille", although the new project went further than the process of the same name referred to in Interbrew's memo of 18 February 1993, which was aimed at reducing marketing spending (recital 46). The new agreement was confirmed at a meeting between the parties on 19 November 1994. On 24 November, as part of the cooperation between Interbrew and Alken-Maes, an agreement was concluded regarding the sharing of customers.
(52) At the beginning of 1994 Interbrew's CEO made the acquaintance of the new general manager of Danone's beer division(40). At their first meeting or meetings - there may have been a meeting in Amsterdam, and there certainly was one at Danone's offices in Paris - one of the subjects discussed was the adoption of a certain course of conduct on the market(41).
(53) At an internal discussion within Interbrew on 5 May 1994, Interbrew's CEO described a scenario requested by Danone/Kronenbourg(42). Interbrew was to transfer 500000 hl to Alken-Maes, essentially in the off-trade. Otherwise Interbrew would be annihilated in France, and an attack would be mounted on it in Belgium by means of very low prices(43).
(54) The scenario put forward by Kronenbourg was discussed by executives of Danone and Interbrew at the restaurant Le Roy d'Espagne in Brussels on 11 May 1994(44); Interbrew has its registered office at the same address, Grote Markt/Grand Place 1, B-1000 Brussels. There was probably also a representative of Alken-Maes present. The following came up for discussion(45). "[The general manager of Danone's beer division] repeated his demand that 500000 hl be transferred to Alken-Maes, and threatened that otherwise Interbrew would be destroyed in France. He wanted Interbrew and Alken-Maes to conduct themselves on the Belgian market in line with 'the agreements in France' ... The French mechanism can be summarised as follows. Heineken's and Kronenbourg's off-trade sales managers consult together very often in order to check their respective market shares and to manipulate promotions, prices and conditions"(46).
(55) A document from Heineken confirms Interbrew's statement regarding the relationship between the Belgian and the French markets and the proposals put forward by Kronenbourg/Danone. "Three years ago [the general manager of Danone's beer division] left Interbrew a choice: either they gave Maes an extra 500000 hl or he would drive them out of France. The form of cooperation that existed between Heineken and Kronenbourg in France was referred to(47)".
(56) The situation in France and Belgium was discussed again in a telephone conversation between the CEO of Interbrew and the chairman and general manager of Danone on 6 January 1994(48). In an internal memo from Interbrew's CEO dated 7 July 1994 we find the following(49): "I agreed yesterday with the 'Big Boss' of 'Green' [Danone] that we would not launch a war but instead try to gain time. Our objective is to arrive at a solution such as a marketing agreement for example, and to put the same thing into practice in Belgium. We will certainly stay in contact."(50) According to Danone the telephone conversation referred to was concerned with Interbrew's distribution efforts in France, but Danone documents confirm the existence of a non-aggression pact between Interbrew and Danone/Alken-Maes on the Belgian market(51). There is a reference to "July 94: peace with [Interbrew CEO] almost signed"(52) and "market shares justice of the peace"(53). The same documents also confirm the relationship between the agreements on the Belgian and French markets: "Peace in Belgium [harr ] Regional peace in France [rarr ] National peace."(54)
(57) At a dinner on 29 August 1994 a director of Interbrew met the general manager of Alken-Maes (55). The Interbrew representative states the following(56): "Although the on-trade was not discussed at the meeting in the Roy d'Espagne, once ... had become general manager of Alken-Maes he began to call me to suggest that we should align our conduct in order to keep control of the very big increase in investments needed to conclude on-trade beer supply contracts. I had various other conversations, mainly by telephone, with [the general manager of Alken-Maes]. He tried to set up a system of consultation to take place before pubs were bought or sold. I always refused. Against this background I had dinner with [the general manager of Alken-Maes] ... The result was my memo of 5 October 1994 to [the CEO of Interbrew] ... The discussion at the dinner did not go beyond generalities. I repeated that the 'French mechanisms' were not transposable to Belgium"(57).
(58) In the memo of 5 October 1994 this dinner with the general manager of Alken-Maes is reported as follows(58):
"1. He realizes that the situation in France and Belgium is very different and that what can be done in one country can not be done in the other.
2. He is under strong pressure from headquarters to pursue an aggressive marketing policy in Belgium which he fears will be costly and not necessarily efficient.
3. We agreed that discussion in the CBB on the Arthur D. Little Horeca 2000 project [see below, recitals 129 et seq.] also can be a good forum to study ways and means to reduce cost of doing business in Horeca.
4. We have communicated to him that he is the one who has become aggressive and that, particularly in the Food, we will react to his price actions, but we will not take the initiative."
(59)
(59) On 12 October 1994 Interbrew's new general manager for Belgium and the general manager of Alken-Maes met at the Sheraton Airport Hotel at Brussels airport(60). In a preparatory memo from Interbrew's marketing manager for the on-trade in Belgium to Interbrew's general manager for Belgium we read the following(61):
"1. Putting an end to expensive attacks
national customers sector ...
extremely difficult to draw a line, few rules or none
traditional on-trade
first of all a method has to be established ...
all dimensions of distribution agreements should be looked at:
a. investment policy
b. rebate policy ...
c. logistical measures
2. Reducing unproductive spending
sectors: publicity, pumps ...
A joint approach following on from the Arthur D. Little study could produce considerable returns for both parties. The two biggest brewers should be able to dictate the law here by laying down rules together with the beer wholesalers' federation.
...
4. General
- ... that the application of mutual agreements cannot be checked (or that any checks must be carried out by a neutral outside body, and in that case there is too great a danger that it will become known)
- using the CBB to achieve our objectives looks simpler to me."
(60) In an internal memo of 14 October 1994, on the subject of the "Université de Lille", Interbrew's general manager for Belgium reports on the meeting of 12 October(62): "Enclosed you will find a document from our friends as well as the one-page approach which I proposed. This was accepted by our friends in terms of principle"(63). The document in question originates with Alken-Maes, and gives an outline of the Belgian brewing industry and possible solutions to problems that have arisen(64). In the "one-page approach" referred to here by Interbrew's general manager for Belgium, we read the following(65):
"3. Gentlemen agreement:
- No attack of obligations [i.e. on-trade outlets with an exclusive purchasing agreement]
- Price-positioning food
- No systematic attack of brands in each other's obligations
4. Efficiencies/market dynamics
- Diminish unproductive spendings:
- P.O.S.
- Draught services
- Folder activities (no., % rebate, ...)
- Investments in Horeca (definitions?!)
5. Structural measures
Concentration of production
Marketing policies (pricing, BEF 20 ...)"
(66)
(61) Danone too was aware of this agreement. In an internal telephone conversation at the end of 1999 or the beginning of 2000 in connection with the inspection carried out by the Commission at the offices of Alken-Maes, reference was made(67) to a "94 agreement carrying the name of [the general manager of Alken-Maes]"(68).
(62) In an undated memo by Interbrew's general manager for Belgium in which these subjects are mentioned, there is also a timetable(69):"Project definition and gentlemen agreement 01/11, Market dynamics 01/02, Restructuring 01/04."(70)
(63) On 18 October 1994 there was a follow-up meeting between Interbrew's general manager for Belgium and the general manager of Alken-Maes(71). From notes kept by the marketing manager for the on-trade in Belgium, it is clear that "Université de Lille" was discussed at this meeting too(72).
(64) In an internal memo of 24 October 1994, Interbrew's general manager for Belgium summarised the discussion so far, and proposed other steps to Interbrew's CEO(73):
"1. Reply from Green [here Alken-Maes] to ITW-proposal
1.1. Pricing:
OK to establish key lager beers at same price and KRO [Kronenbourg] +- 5 % higher.
1.2. Gentleman agreement:
- limited to classical Horeca,
- not to: national accounts, presence of each others brands in obligations.
1.3. All other elements: OK
1.4. Further proposals:
...
- apply rebates to net prices [prices before excise duties, see in particular recitals 96 and 104 below],
...
small price increase in 1995.
..."
(74)
(65) Talks between Interbrew's general manager for Belgium and the general manager of Alken-Maes continued on 26 October 1994(75). On 7 November Interbrew's general manager for Belgium reported to the Interbrew CEO as follows(76):
"1. Basis of any agreement
Spirit accepted regarding respect of each others current position in the market ...
2. Program for profit growth
Basic agreement to work in 3 phases:
A. Priority 1
Pricing in the food to be established.
Maximum rebates or premiums for promotion to be defined.
Review POS materials & costs for Horeca.
Review investment in POS ...
...
B. Priority 2
Production rationalisation.
C. Priority 3
Restructure the market:
- tariffication,
- horeca investments,
- draught costs,
- etc ...
3. Next steps
04/11: Green [here Alken-Maes] to review program with superiors.
09/11: meeting with respective sales managers to:
- confirm overall spirit;
- define next steps for 'Priority 1' ..."
(77)
(66) The meeting which according to the memo of 7 November was planned for 9 November did in fact take place on that date. Interbrew was represented by its Belgian general manager, off-trade manager and marketing manager, and Alken-Maes was represented by its general manager and managers for the off-trade and the on-trade(78). A separate document sets out the "program for profit growth" referred to in the memo of 7 November 1994; some marginal notes have been added(79). These notes may well have been made at the meeting of 9 November 1994, and among other things describe a price agreement for the off-trade, showing the price of a crate of Pils at BEF 275(80); such a price agreement had been referred to under "Priority 1" in the memo of 7 November 1994. It is also noted that the points in "Priority 3" are to be implemented by the CBB.
(67) Interbrew's marketing manager for the on-trade in Belgium also made notes at or with reference to this meeting; the notes are dated 9 November 1994. Under the heading "Spirit" the notes mention "Creative competition - avoid direct attack - pay attention to other competitors - consultation"(81).
(68) On 24 November 1994 Interbrew's marketing manager for the on-trade in Belgium and Alken-Maes's manager for the on-trade discussed outstanding differences regarding individual sales outlets, and also "project Green"(82). In handwritten notes made at or with reference to the meeting, the marketing manager gives the following details of the agreement for the "traditional" on-trade(83):"It was agreed that drink supply contracts should be respected at all times. No new contract if the customer had a contract with more than two years to run, to give the present brewery the opportunity to secure a renewal first. No prospecting for speciality beers among customers that had Pils contracts with the competition (each to his own). No incentives to beer wholesalers to convert specialities by increasing rebates."
In the margins of the same notes the marketing manager has also made a few critical comments on the agreements. He remarks in one place that there is a danger that "someone else may run away with the business".
4.3.2.3. 1995
(69) Summary
In 1995 there was regular consultation between Interbrew and Alken-Maes (and Danone) concerning the implementation of the agreements concluded in 1994. The two brewers also began to consult regarding a new system of pricing for the on-trade and the off-trade(84).
(70) On 10 January 1995, at the Roy d'Espagne in Brussels, the general manager for Belgium and CEO of Interbrew and the general manager of Danone's beer division discussed relations between Interbrew and Alken-Maes(85).
(71) On 25 January and 10 February Interbrew's general manager for Belgium and the general manager of Alken-Maes discussed the status of "project Green"(86).
(72) On 30 January Alken-Maes's manager for the on-trade sent a letter to Interbrew's marketing manager for the on-trade in which he compared offers made by Alken-Maes with those of Interbrew. The letter states as follows: "I am forced to conclude that Interbrew has no real intention of acting to bring about a healthier on-trade market, since the spirit of what we have regularly discussed together - in the presence of our respective superiors, and at their express initiative - is manifestly being ignored ... I would be glad to have your reaction, in the hope that you might be able to clarify matters, and especially that you would want to prevent any repetition in future. It should be clear that little or nothing can be expected by way of results from our discussions in the CBB working parties if we see that even bilaterally we are unable to follow a sensible approach on the ground."(87)
(73) Relationships and agreements on the market were discussed once again at a meeting in Leuven on 18 April. Present were Interbrew's general manager for Belgium, marketing manager for the on-trade in Belgium, and manager for the off-trade, and Alken-Maes's general manager and managers for the on-trade and the off-trade(88). Interbrew's marketing manager for the on-trade in Belgium drew up a preparatory document, dated 14 April, summarising the relevant sectors, ends and means(89):
TABLE "
(90)
Notes made at the meeting show that there was talk of a ceiling on investment costs of [...] per hectolitre. At this meeting Interbrew and Alken-Maes also discussed the status of the CBB "Vision 2000" project (on this project see also recitals 128 et seq.)(91).
(74) At an Alken-Maes internal meeting on 15 May 1995, Alken-Maes's management controller announced that Interbrew intended to launch its new prices on 1 January 1996, and gave some details. He also said that Interbrew wanted to enter into contact with Alken-Maes in this connection, and that a meeting was planned for 18 May. The objective was clearly to work in the "same direction"(92). Alken-Maes now decided to speed up its own pricing study, and on 16 May an action plan was sent to a number of senior Alken-Maes managers(93).
(75) Interbrew's general manager for Belgium and the general manager of Alken-Maes met on 18 May(94).
(76) At an internal presentation of Alken-Maes's pricing study on 12 June, Interbrew's new pricing system was referred to; it was said that "the exact impact will be looked at together later (IB-AM)", and that "Alken-Maes must likewise have the first phase ready on 1 January 1996". One of the requirements for implementation on 1 January 1996 was said to be "being more or less on the same wavelength as IB"(95).
(77) A subsequent meeting between Interbrew's general manager for Belgium and the general manager of Alken-Maes took place at Interbrew's offices on 30 June(96). On 4 July the CEO of Interbrew had a telephone conversation with the general manager of Danone's beer division. From a preparatory memo drawn up by Interbrew's Executive Vice-President Western Europe, and the report on the conversation drawn up by Interbrew's CEO, it is clear that Interbrew believed it had complied with its agreements in Belgium(97): "We have respected our deal in Belgium"(98).
(78) In an internal memo of 12 July on the subject of "Pricing and logistics" (without Annexes), Interbrew's general manager for Belgium says "I believe it could be useful to discuss these prices with A-M. When would that be possible? Appointment set for 30 August"(99).
(79) On 28 August 1995 Interbrew's new general manager for Belgium, who had previously been manager for the off-trade, sent a letter to the general manager of Alken-Maes, which read as follows(100): "I would like to thank you and your people for your congratulations on my appointment as general manager for Belgium. You worked in excellent mutual understanding with [the previous general manager for Belgium], and I am looking forward to continuing with you in the same spirit. There are more than enough win/win opportunities, either direct or through a professional CBB, and good communication is a guarantee of success. Till 1 September."
(80) It was not on 30 August, therefore, but on 1 September that the meeting took place between Interbrew's former general manager for Belgium (who in August had been appointed Chief Operating Officer (COO) Europe/Asia Pacific/Africa), Interbrew's new general manager for Belgium, and the general manager of Alken-Maes(101). At this meeting the "exact impact" was "looked at" (see above, recital 76)(102). Three days later Alken-Maes's general manager reported on the meeting to the company's management controller(103).
(81) Around this time the brewers had to consider a request from the Belgian distributive trades federation, Fedis. Fedis wanted a payment known as a "sorting charge" to be made to its members, the multiple stores, for every crate of sorted empty bottles(104).
(82) On 26 October representatives of Alken-Maes and Interbrew agreed a response to Fedis's approach. The meeting was attended by Interbrew's new manager for the off-trade and its invoicing manager, and by Alken-Maes's management controller. According to Interbrew, Alken-Maes and Interbrew had been discussing this sorting charge with Fedis on behalf of the CBB, and were consulting with one another in that connection. From the notes kept by a member of Alken-Maes's staff who was present, however, it is clear that there had not been any meeting in the CBB framework, because it is noted that some measures are to be tackled via the CBB(105). Furthermore, Alken-Maes acknowledges that an agreement with Interbrew was discussed(106). There was a further meeting between Interbrew's general manager for Belgium and the general manager of Alken-Maes on 31 October(107).
4.3.2.4. 1996
(83) Summary
In 1996 there was intensive consultation between the brewers regarding pricing. Both brewers wanted a new system. They discussed the structure of a new pricing system and the direction taken by rebates.
(84) On 10 January 1996 Interbrew's general manager for Belgium and the general manager of Alken-Maes discussed pricing further(108). Alken-Maes states the following(109):
"Upon his return, [the general manager of Alken-Maes] explained Interbrew's position on pricing policy to [Alken-Maes's management controller]. [Alken-Maes's management controller] noted that there had to be 'an agreement in principle with Interbrew by 10 February 1996'. In a handwritten note, [the general manager of Alken-Maes] recorded that the pricing study had to cover three dimensions: logistics, pricing proper and marketing. A memo from [Alken-Maes's management controller] set up an action plan inside Alken-Maes, and identified the responsibilities of stated members of staff for each aspect of the study, so as to be able to respond quickly to the Interbrew initiative. It was also decided ... to introduce Alken-Maes's new prices no earlier than 1 January 1998, on the basis of customer behaviour in 1997.
There was doubtless another meeting between [Interbrew's general manager for Belgium] and [the general manager of Alken-Maes] in January or February. The notes kept by [the general manager of Alken-Maes] summarise Interbrew's position regarding price structure, rebates and logistics. In a memo of 15 February 1996 the consultant, Martichoux, summarised a conversation with [the general manager of Alken-Maes] concerning the progress of the pricing study at Interbrew.
On 1 March Martichoux presented its study to Alken-Maes; the study stated that agreement could be reached with Interbrew regarding the price structure and the timetable. The memo presenting the study also stated that an agreement with Interbrew would simplify the introduction of a future system. This presentation was followed by another on 15 and 16 April.
[The general manager of Alken-Maes] learned that Interbrew wanted to introduce its new system on 1 January 1997; [the general manager of Alken-Maes] asked [Alken-Maes's management controller] to speed up the implementation of the new system so as to be able to introduce it on the same date."
(110)
(85) The other meeting which according to Alken-Maes took place between Interbrew's general manager for Belgium and the general manager of Alken-Maes (recital 84) may have been the meeting in Leuven on 29 February 1996. Interbrew's Chief Operating Officer Europe/Asia Pacific/Africa was also present at that meeting(111). On 28 February 1996, the day before the meeting, he referred in a telephone conversation with the chairman and general manager of Heineken(112) to the existence of a "non-war agreement in Belgium"(113).
(86) A subsequent meeting on pricing took place on 24 April. It was attended by Interbrew's general manager for Belgium and manager for the off-trade, and the general manager and management controller of Alken-Maes(114). In connection with this meeting Alken-Maes states the following(115):
"The meeting discussed the merits of a graded tariff, a more transparent rebate policy, and the logistical aspects of the new pricing system. It appeared that Alken-Maes was a supporter of an open logistical pricing system, while Interbrew did not want to apply a transparent tariff to all its customers. According to the minutes of the meeting, drawn up by [Alken-Maes's management controller], the two competitors felt they would need to study the 'legal aspect' in the event that they were to 'begin together' on 1 January 1997 and the two systems were to 'resemble each other too closely.' An internal Alken-Maes document on the new pricing structure, dated 6 May, also refers to the discussions with Interbrew.
On 7 May [the general manager of Alken-Maes] instructed [Alken-Maes's management controller] to contact [Interbrew's manager for the off-trade] as a consequence of an agreement between [the general manager of Alken-Maes] and [Interbrew's general manager for Belgium], on the basis of which [Interbrew's general manager for Belgium] had invited Alken-Maes to acquaint itself with its [Interbrew's] price list. [The general manager of Alken-Maes] also told [Alken-Maes's management controller] that he would have to analyse Interbrew's system, and that Martichoux's help would no longer be required, since he wanted to use 'the same framework' and base himself on Interbrew's system."
(116)
(87) From the minutes of the meeting drawn up by Alken-Maes (preceding recital)(117), it appears that the new pricing system Interbrew wanted to apply was built on three components, or types of rebate: logistics, volume and individual (depending on the particular customer). Clearly there was agreement between the parties on a number of principles, such as that the rebate was to depend on volume, and that the purchase price paid by the on-trade was always to be the same as or lower than [...] (the rebate was always to be [...] % higher). There was also talk of dividing the speciality beers into categories, each with their own rebates, rather than a general rebate spread over all speciality beers bought. In its observations on the statement of objections, Danone argues that it is a fact of the market that the prices paid by beer wholesalers will always have to be [...] % lower than [...], because of the extra services that beer wholesalers provide to on-trade outlets. [...].
(88) As a result of this agreement between Interbrew and Alken-Maes, a meeting took place in Mechelen on 30 May 1996 between Interbrew's off-trade manager and Alken-Maes's management controller(118). At that meeting there was further discussion of the components of the pricing system already described, and of the manner in which customers were to be informed(119). [...].
(89) A number of documents date from the period between the meeting of 30 May and the next documented meeting on 29 June. Concerning these documents Alken-Maes states as follows(120):
"On 11 June 1996 Interbrew wrote to all its customers, including Alken-Maes, to advise them of the introduction of new general terms and a new pricing system with effect from 1 January 1997. On 26 June a presentation memo by Martichoux referred to contacts between Alken-Maes and Interbrew, and analysed the attitude Alken-Maes ought to take to Interbrew's new terms. An internal Alken-Maes memo dated 3 July, drawn up by [Alken-Maes's marketing manager], discussing the merits of delivered-to-premises and ex-factory pricing, referred to comments made by [Interbrew's manager for the off-trade] regarding Interbrew's new pricing system. On 5 July Martichoux made a presentation to Alken-Maes on the possibility of introducing an ex-factory price ... On 25 July Alken-Maes decided not to introduce an ex-factory price after Interbrew had abandoned the idea."
(121)
(90) The meeting of 29 July 1996 was attended by Interbrew's manager for the off-trade and Alken-Maes's general manager, marketing manager and management controller(122). From the notes of the meeting kept by Alken-Maes, it is clear that the rebate structure already mentioned was not the only subject discussed. There was also talk of a transitional arrangement to apply when the new terms were being introduced: "Guarantee: ... must be the same amount in 1997 as in 1996 (in absolute figures)"(123).
(91) On 19 September 1996 Alken-Maes decided to introduce its new logistical system with effect from 1 July 1997. On 27 November 1996 Alken-Maes decided to explain the new system by means of presentations to be organised with the help of Martichoux. Following on from the meeting of 19 September, Alken-Maes's management controller contacted Interbrew's off-trade manager, on 9 December, to ask a number of questions Alken-Maes had with regard to the pricing study(124).
(92) On 11 October Interbrew's Chief Operating Officer Europe/Asia Pacific/Africa sent a fax to a member of one of the families that owned shares in Interbrew. The subject was day-to-day relations with Danone/Kronenbourg/Alken-Maes(125): "We have been talking about a constructive competition in Belgium since one year now. Fundamentally nothing has happened. And most probably the responsibility for this is shared. We will try to restart this process in the following week"(126).
4.3.2.5. 1997
(93) Summary
In 1997 contact seems to have grown less intense, probably in part because Interbrew had introduced its new pricing system on 1 January. Alken-Maes ultimately launched its new pricing system some time after Interbrew, which had not been the earlier intention.
(94) Interbrew's new pricing system entered into force on 1 January(127).
(95) On 17 April Interbrew's Chief Operating Officer Europe/Asia Pacific/Africa and general manager for Belgium met the general manager of Danone's beer division and the general manager of Alken-Maes in Paris(128).
(96) Regarding this meeting on 17 April, the then general manager of Interbrew has stated as follows(129):"There were top-level meetings ... which I did not attend. After the top-level meetings we had 'instructions meetings' which we all attended (general managers and managers for the off-trade and the on-trade) ... The meeting in Paris on 17 April 1997 was just one of these instructions meetings with Danone (Danone was represented by [the general manager of its beer division]). We ('Belgium' and 'France', but each separately) were to report on synergies. At that meeting we went through profit and loss line by line, and systematically examined how costs could be lowered and profitability improved. Subjects discussed were: (1) production; (2) joint distribution platforms; (3) discounts on price to be given before or after excise duties (this was also a CBB subject); (4) marketing and investment in advertising ('share of voice'); (5) growth of the beer market, and methods of increasing volume ..."
(97) An internal Alken-Maes memo of 25 June reports on the actual implementation of the prices introduced by Interbrew on 1 January, and the departures from those prices observed in practice(130).
(98) In another internal memo, dated 4 August, Alken-Maes reviews the situation, and refers to possible difficulties with the Belgian beer wholesalers' federation in the event that it were to change over to the new system of pricing(131).
(99) By letter of 1 September 1997 Interbrew asked its customers for their cooperation in an evaluation of its new pricing system(132).
(100) In October Alken-Maes decided to introduce a new logistical pricing method. Up to the end of November it carried out simulation exercises for the new system of logistical and commercial pricing(133). Alken-Maes's management controller states that there was no further cooperation with Interbrew thereafter, i.e. after November 1997(134).
4.3.2.6. 1998
(101) Summary
At the beginning of 1998 there was a meeting between Interbrew and Alken-Maes to take stock of several years' cooperation. Achievements since the gentleman's agreement of 1994 were specifically detailed. After this meeting cooperation between Interbrew and Alken-Maes seems to have come to an end.
(102) On 1 January 1998 Alken-Maes introduced its new logistical pricing system. It launched its new commercial pricing system on 1 January 1999(135).
(103) On 28 January 1998 Interbrew's marketing manager for Belgium and the marketing manager of Alken-Maes met in Anderlecht in Brussels. The subject was the history of relations between Interbrew and Alken-Maes(136). Interbrew's general manager for Belgium and off-trade manager may also have been present at this meeting(137).
(104) The notes on this conversation kept by Interbrew's marketing manager for Belgium are as follows(138):
"1. Subjects
1. Organisation of consultations
2. Current issues
TABLE
3. General issues
2. Retroactivity 12 October 1994
- stop expensive attacks
- reduce unproductive expenditure
- stimulate beer consumption
achievements:
- rebates on price net of excise
- advertising credit vouchers adapted [see also recital 147]
settlement of old disputes
Pricing
joint issues
- maintenance of draught pumps
respect for other's ties
no aggressivity pact
- standardisation of packaging
not achieved:
- regulation of investment
- participation of other players
- outside advertising
The on-trade objectives
'respect for ties and supply rights
regulation of investment
attitude/action on practices of small brewers and private-labels ...'
3. Consultation on on-trade
- three times a year formal consultation with agenda
- direct contact over difficult issues and competition for national customers...(139)"
(105) On this point the then marketing manager for the on-trade at Interbrew states as follows(140):"The item dated 28 January 1998 is my notes of a meeting ... with ... the new marketing manager (on-trade and off-trade) at AM. He clearly knew nothing about the history. I had no further contact with AM thereafter, and nothing came of the meeting. In 1998 neither AM nor ourselves were under pressure from above, so nothing more happened."
The representative of Alken-Maes at that meeting writes(141):"As you know, I was always cautious and sceptical of Alken-Maes's biggest competitor. The few conversations referred to never led to any concrete results."
4.3.3. The facts: supplementary statements
(106) In addition to the facts relating directly to particular meetings or events, more general statements have been submitted regarding what happened in the period 1992 to 1998, both by Interbrew, or employees or former employees of Interbrew who played an important role at the time, and by Alken-Maes.
4.3.3.1. Individual statements
(107) Interbrew's general manager for Belgium, later Chief Operating Officer Europe/Asia Pacific/Africa states as follows(142):
"There were indeed regular contacts and meetings between ITW and AM/Kronenbourg/Danone. ITW's intention was to create goodwill for Danone, with a view to a merger or takeover of its beer business. The strategy rested on talk, lots of talk, and agreed measures that would allow value to be created jointly
...
Measures to contain aggression/cost explosion ('Université de Lille')
The initiative came from AM, and thus from Danone. We in Belgium wanted some kind of balance with France, where ITW was very weak. There was clearly blackmail in terms of the French market. We were afraid of retaliation in France. So we wanted to break the link with France structurally, by working AM loose from Danone. The issue was: what measures can we take to contain the cost explosion jointly:
- investment in pubs
- promotions in the off-trade.
This was followed up by the marketing departments, each with its opposite number. We met every two months to discuss progress.
We achieved very little by way of results.
In the on-trade, there were agreements on the 'national accounts' and on the restriction of investment, but [the marketing manager for the on-trade in Belgium] never succeeded in implementing them ...
In the off-trade, prices were set ([Interbrew's off-trade manager and later general manager for Belgium] with [Alken-Maes's marketing manager]), but these agreements were not complied with either ...
As regards the pricing system, I did not deal with that personally. I know there was consultation. The objective at one stage was to do it together with AM, but they were not ready. ITW went ahead, and AM followed ..."
(108) Interbrew's on-trade marketing manager for Belgium states as follows(143):"The term 'Université de Lille' originally stood for a form of market behaviour in which we were expected to behave like 'gentlemen'. We would compete, but we would not go too far. Much later it came to mean keeping market relationships in Belgium balanced with what was happening in France."
(109) Interbrew's manager for the off-trade, and later general manager, states the following(144):
"In the off-trade we achieved a lot, far more than in the on-trade, where admittedly little or nothing happened.
In the off-trade there were agreements on:
- rebates on promotions aimed at the consumer (e.g. 5 + 1 free)
- marketing issues (e.g. value of coupon at promotional events)
- advertising brochure frequencies (e.g. maximum 10 brochures for crates of beer at GIB).
[Alken-Maes's marketing manager] was also keen to see standardisation of packaging (joint responsibility for the standardisation project at the CBB).
That did not prevent us from being very aggressive on prices; competition was stiff, especially from 1994 onward. The Nielsen statistics are there to prove it."
And in answer to a request for clarification he adds(145):
"In the period (spring 1996) ... we were looking for better ways to employ our marketing resources in order to get our beer volume growing again.
Practical agreements:
- When we were promoting a multi-pack (a six-pack for example) we would limit ourselves to 5 + 1 free, rather than 4 + 2, [...]. For speciality beers the minimum was 3 + 1 (in a four-pack).
- At promotional events and tastings of our products in supermarkets and hypermarkets at weekends (openings, anniversaries) we would limit ourselves to giving a BEF 30 price coupon (= reduction at the check-out) ...
- In the same spirit, greater discipline was imposed with regard to inserts in supermarkets' advertising brochures and the minimum promotion brochure price (not shelf prices) (...) [...]. Advertising brochure prices were already aggressive (as low as BEF 249 for Maes), and we tried to avoid letting them fall any further, and to secure a minimum advertising brochure price from our customers."
(110) Interbrew's off-trade manager, who had previously worked in the Belgian direct distribution department, states as follows(146):"I learned that there were regular talks with Alken-Maes, and that they regularly called one another. When I asked whether this was in order legally, I was told by [Interbrew's general manager for Belgium] that this was not a problem. I was also told that it was part of a bigger Belgian-French story."
And in answer to a request for clarification, he adds, under the heading "Agreeing an off-trade plan for promotional pressure"(147):"As I explained earlier, there was discussion about pressure of advertising brochures (the number of folders in a given period), promotional price levels and number of free gifts. From memory, and to the best of my knowledge, in 1996 the subject was promotional prices. In 1997 the subject was the number of brochures, price levels and free gifts."
4.3.3.2. General statements
(111) Interbrew has admitted the existence of the following practices(148):
"Collaboration with BSN (later Danone) and/or Kronenbourg about competitive behaviour and cooperation on the Belgian market (as from about March 1993 to January 1998) ... including:
- concerted measures in Horeca (reduction of unproductive investments, reduction of advertisement spendings, draught services...),
- respect of each other's ties,
- market sharing in respect of national accounts,
- agreements on promotions in the food market,
- exchange of information about the structure of the new tarification system (1996)(149)."
(112) Alken-Maes has admitted being involved in the following at the end of 1994(150):"a pact providing for non-aggression, the reduction of marketing investment in the on-trade and in outside advertising, and concerted pricing. Proper implementation of the agreement seems to have been the subject of a procedure for regular consultation between the senior managers of the two companies."(151)
"Numerous meetings took place between executives of Alken-Maes, notably [the general manager], who was managing director between 1992 and 1998, and executives of Interbrew, especially [the successive general managers], at which there was concertation about the distribution and sale of beer in Belgium."(152)
4.4. Bilateral exchange of information between Interbrew and Alken-Maes
(113) Summary
From a large number of documents it is clear that Interbrew and Alken-Maes exchanged detailed sales information on a monthly basis(153). Alken-Maes and employees of Interbrew have stated that this exchange began at the initiative of Interbrew(154). According to both Interbrew and Alken-Maes, the exchange of information started no later than the end of 1991, on the basis of an oral agreement. The designated contacts at Alken-Maes and Interbrew exchanged the information by telephone(155). The information exchange system that operated between Interbrew and Alken-Maes assisted their implementation of the agreements described above (section 4.3).
(114) It is not clear exactly when the exchange of information began. The statements do not correspond. Some indicate that it began as early as 1989(156); but in any event the Commission has evidence that it started no later than the end of 1991. According to Interbrew, it began in December 1991, and according to Alken-Maes in November 1991. The first information exchanged concerned changes in total sales of Pils and non-alcoholic beer to the on-trade and off-trade together, in percentages, in November or October 1991(157).
(115) From April 1992 onward figures were also exchanged for volumes, and not just for percentage changes, for Pils, non-alcoholic beer and light (low-alcohol) beer. Sales were also broken down by distribution channel (identified by the English terms "food" (the off-trade) and "trad." ("traditional", the on-trade), and form of packaging ("barrels" and "others"). On 22 April 1992, for example, Interbrew's figures for March 1992 were circulated(158). These were followed by back sales figures for 1991(159).
(116) No later than October 1992 monthly information was being exchanged on sales by volume in all segments(160). Figures for September 1992 were circulated within Interbrew on 15 October(161). The time-lag of two weeks between the end of the month and the exchange of information in respect of that month was maintained until the exchange of information came to an end(162).
(117) From April 1994 the figures for Interbrew no longer include volumes brewed by Interbrew under licence and sold by other parties (that is to say the Carlsberg and Tuborg brands)(163).
(118) From 1997 the figures distinguish between the brands belonging to the brewers themselves and beer produced by them under distributors' own brands ("private-labels")(164).
(119) On 8 September 1997 a meeting took place between Alken-Maes's management controller and the marketing information manager and another marketing executive of Interbrew, at which the exchange of information was discussed(165). Regarding this meeting Alken-Maes states as follows(166):"on 8 September 1997, at the request of [Alken-Maes's general manager], [Alken-Maes's management controller] met [Interbrew's marketing information manager and another marketing executive of Interbrew] at the restaurant Le Roi d'Espagne in Brussels in order to consider the best way of showing sales of private-labels in the statistics exchanged every month between Interbrew and Alken-Maes. During the meeting the general segmentation of the data was also discussed. According to [Alken-Maes's management controller] this meeting followed Interbrew's entry into the private-label beer segment. Interbrew wanted to be able to monitor the movement of its share of sales in this segment, where it believed it could achieve the same market share as it had for sales of beer under its own brands."(167)
(120) From various documents it is clear that there was repeated telephone contact in order to optimise the exchange of information(168). At the beginning of 1999, for example, there was contact regarding a further breakdown of the figure for Pils by type of packaging. Initially agreement was reached between the marketing managers of Interbrew and Alken-Maes. But this oral agreement was never put into effect.
(121) By letter of 5 November 1999 Alken-Maes told Interbrew that "on 27 October 1999 we decided to stop notifying our monthly sales figures"(169).
(122) Interbrew's former general manager for Belgium states as follows with regard to the exchange of information(170):"As far as I can remember this system was set up by [the then general manager for Belgium] in 1992 ... The objective was to obtain faster and more accurate information for both the on-trade and the off-trade ... There were other statistics available on the market, but they were less reliable and also slower ... There were also the statistics we received from the CBB. But these were much slower, because they were only three-monthly. The figures were never discussed as such with AM. A general commentary on the trend was given from time to time. This was against the background of our agreement with [the chairman and general manager of Danone] that it was in our interest 'to approach the market calmly'. Thus we looked at these figures to consider whether ITW was doing well in a particular area, and AM less well, etc."
(123) In response to more detailed questions which the Commission put to Interbrew by fax of 21 January 2000(171), this statement was clarified as follows. To the question whether the exchange of information was used to monitor compliance with agreements with Alken-Maes, the answer was(172):"No. Although Kronenbourg had asked for agreements on market shares, no such agreements were concluded. Thus no monitoring was necessary. Nor did the fact that a general commentary was given mean that internal instructions were issued on the basis of the figures. These were commentaries on the figures. They were never linked to action."
(124) Interbrew's manager for the off-trade, later general manager for Belgium, has stated as follows(173):"I was aware of the system of exchange between ITW and AM. We looked forward to it, because it was practical and quick ... We sifted the information as carefully as possible in order to obtain good market intelligence. We knew our market share in Belgium to within a tenth of a percentage point. The information we obtained was very important. We looked at that information first, then at the CBB's figures, and then at Nielsen's, where they existed. For market estimates we used the exchanged information most of all. But the information did not influence any decisions. The big competitor was not AM but the private-labels."
(125) Interbrew has admitted(174) the existence of "Exchanges of information with Alken-Maes: total volumes of sales of beer on the Belgian market (December 1991); monthly exchanges on volumes for Pils and non-alcoholics (as from early 1992). As from October 1992 until November 1999: monthly exchanges of information on all segments (volumes)."(175)
4.5. The CBB meetings
(126) Summary
In the period from October 1990 to June 1997 there were numerous meetings of working parties in which the members of the CBB discussed the pricing structure and other joint measures. The meetings in question were primarily meetings of the Working Party on Pricing Structures, and its successors "Vision 2000" and the Market Policy Committee. On the Vision 2000 working party, the Market Policy Committee and the subgroups they set up Interbrew and Alken-Maes played a leading role.
(127) Up to August 1993 various discussions took place in the CBB's Working Party on Pricing Structures. In 1990 and 1991 the working party met about ten times. It seems to have been less active in 1992 and the first half of 1993(176). For most of this time the chairman was an Interbrew employee. Alken-Maes was represented by a sales manager(177).
(128) From the meeting held on 4 August 1993 onward, the Working Party on Pricing Structures was known as "Vision 2000". It consisted of Interbrew's manager for the off-trade, two employees of Alken-Maes, the marketing manager of Haacht, and an employee of the CBB(178). This first meeting under the new name discussed the harmonisation of the existing pricing structures for deliveries to the off-trade in Belgium and abroad. As regards the on-trade, it was agreed that rebates should be calculated in the same way as they were in the off-trade(179).
(129) The meeting of the working party on 15 October 1993 considered the possibility of having a study carried out in order to arrive at "a better understanding of possible future developments in the beer wholesale structure and the on-trade" and "to study one-off problems: parallel imports"(180). CBB documents of 9 and 12 November 1993 describe later tasks of the "Scenario 2000" project. The documents mention the following background factors among others:
"2. Opening of EEC borders
Consequence:
- changes in price structure
- parallel importing
- foreign interference.
3. Professional differences - Comparing Belgium with our neighbours the Netherlands and France
The stated objectives of the project include 'An understanding of present and future changes in beer wholesaling and the on-trade in Belgium, to enable us as brewers to develop our marketing strategy in the medium term.'(181)"
(130) The project was finally carried out for the CBB by Arthur D. Little. The study "Scenario 2000" compared the Belgian market with the Dutch and French markets, with regard to such things as pricing, the distribution system, investment in the on-trade and the profit margins of beer wholesalers in Belgium, the Netherlands and France(182).
(131) The Vision 2000 working party supervised the project. It met for the purpose on 17 January(183), 22 February(184), 24 May(185) and 25 August 1994(186).
(132) In the minutes of the CBB board of directors meeting on 21 September 1994, under the heading "Vision 2000", we read the following: "The chairman reminded the meeting that against the background of the opening up of borders and the growth in parallel trade, the board had decided to ask Arthur D. Little for a report on the pricing structure in Belgium and the neighbouring countries."(187) On 26 October 1994 the board discussed the Arthur D. Little report in more detail(188).
(133) From various documents it is clear that Interbrew and Alken-Maes, in the context of their bilateral contacts, acted together in the CBB and saw the advantages of taking certain initiatives through the organisation. According to an internal Interbrew document reporting on a meeting with Alken-Maes on 29 August 1994(189):"3. We agreed that discussion in the CBB on the Arthur D. Little Horeca 2000 project can be a good forum to study ways and means to reduce the cost of doing business in Horeca."(190)
(134) A number of other documents dealing mainly with the agreements between Interbrew and Alken-Maes make reference to the possibility that the two breweries might realise part of their joint objectives and agreements through the CBB(191).
(135) The results of the Scenario 2000 study were presented to the CBB by Arthur D. Little on 22 November 1994(192).
(136) The working party met again on 12 December 1994. The Arthur D. Little report served as a point of departure for further discussion. The meeting considered the role of the various players in the distribution chain, the associated returns and prices, and investment in promotion materials for on-trade sales outlets, which it was suggested should be based on purchases of beer in barrels(193).
(137) The working party met on 17(194) and 31 January 1995. At the 31 January meeting a number of subgroups were set up to look at six practical areas, including(195):
"...
4. Investment in publicity materials (glasses and beer mats)
(chairman: [Alken-Maes's on-trade manager])
Objective:
- to avoid competition in this area
- harmonisation
5. Management of delivered-to-premises and ex-factory pricing
(chairman: [Alken-Maes's general manager])
Objective:
- situation in neighbouring countries
- to 'finalise' the logistical charge
- to set standards for transport
6. Investment in sales outlets
(chairmen: [Interbrew's marketing manager for the on-trade in Belgium and Alken-Maes's on-trade manager])
Objective:
- practical recommendations
- problems and possibilities"
(196)
(138) On 25 January a more general document entitled "Vision" was circulated for discussion at the meeting on 15 February. The objectives of the working party were described as follows(197):
"To define the role of each link in the distribution chain
To define a framework in which each partner receives a fair price in proportion to the role it actually plays."
(198)
(139) In connection with the work of subgroup 5, which was chaired by Alken-Maes's general manager, a questionnaire concerning logistical arrangements was sent to Interbrew, Alken-Maes, Haacht, Palm, Silly and Moortgat on 16 February 1995, immediately after the working party meeting of 15 February referred to in recital 138(199).
(140) Subgroup 6, on investment in sales outlets, resumed the examination of the harmonisation of the level of investment in the on-trade which had been begun earlier by the Working Party on Price Structures. The subgroup secured the services of the consultant Opdebeeck(200).
(141) On 30 March there was another meeting of the Vision 2000 working party. From the reports made on the work of the subgroups it emerges that the plans of subgroup 4, on investment in publicity materials, were beginning to take practical shape, and that subgroup 5, on delivered-to-premises and ex-factory pricing, had suspended its proceedings to allow the members a period of reflection(201).
(142) The proceedings of the Vision 2000 working party were discussed at a meeting on 18 April 1995, at which Interbrew was represented by its general manager for Belgium, its marketing manager for the on-trade in Belgium and its off-trade manager, and Alken-Maes was represented by its general manager, its on-trade manager and its off-trade manager(202).
(143) The Vision 2000 working party met again on 7 July 1995(203). The meeting discussed the recommendations of subgroup 4, on investment in publicity material, and approved them unanimously. The most important recommendation was that the brewers ought to apply a standard investment of BEF 60 per hectolitre. The activities of subgroup 5, on delivered-to-premises and ex-factory pricing, were still suspended. In subgroup 6, on investment in sales outlets, there was agreement that investment ought to be rationalised jointly, but disagreement on the procedure to be followed.
(144) A new feature is that consideration was also given to the restriction of outside advertising. A separate subgroup was set up to look at this, chaired by the general manager of Alken-Maes. The report includes the observation "The measures referred to in this document can be considered only provided they are in line with Belgian and European legislation"(204).
(145) In July 1995 Alken-Maes received a copy of a memo presenting Interbrew's new marketing policy, which had been sent by Interbrew's off-trade manager to the CBB(205). The memo explains the current pricing structure at Interbrew and its disadvantages, and concludes that a new pricing structure is needed. The objective of the proposal is said to be "price competition at a higher level". It is also said to be a basic condition for success that "all Belgian beer suppliers work in an identical manner (CBB)".
(146) According to a statement by Interbrew's then manager for the off-trade, the memo referred to in recital 145 dates from 8 December 1994 and, after discussion with clients, was presented to the members of the CBB as well. Through this channel it also served as a basis for discussion in the CBB committees and elsewhere(206).
(147) At the meeting of the Market Policy Committee on 9 January 1996 the members confirmed once again that it had been decided that publicity material would be supplied on the basis of the number of hectolitres, no distinction being made between Pils and speciality beers, and that a proposal would be ready by the end of February(207). Interbrew's then manager for the on-trade in Belgium states the following(208):"A number of points was allocated per hl or per barrel. This conferred a proportional entitlement to publicity material. The question was also discussed in the CBB."
This system was known as the "publicity credit voucher" system (publicitair krediet bon - "PKB").
(148) The next meeting was on 12 March 1996. It emerged at this meeting that the Haacht brewery no longer wished to discuss investment in sales outlets or the development of a uniform system of calculation for that purpose. The report of the meeting urged that the working party on outside advertising be relaunched, in view of the possibility of securing efficiencies(209).
(149) The meeting on 23 May 1996 once again reviewed progress in all subgroups(210).
(150) The CBB Market Policy Committee met again on 9 September 1996. The progress of the subgroups was reviewed. In the case of the subgroup on investment in sales outlets, it emerged that only two of the original six brewers were prepared to continue. It is not known which brewers these were. In the light of previous history it is reasonable to suppose that the two brewers were Interbrew and Alken-Maes. The question was asked whether there was still interest in the working party, or whether it should be brought to an end. As regards the subgroup on investment in publicity material, it was observed that the project had been put to the CBB board of directors, and might be launched by 1 January 1997 at the latest. The subgroup considering outside advertising announced that it would be submitting practical proposals at the following meeting(211).
(151) The board of directors of the CBB met on 18 September 1996, and discussed the progress of the Market Policy Committee at some length(212).
(152) The Market Policy Committee met on 14 November 1996, and once again reviewed the progress of the various subgroups(213).
(153) The meeting of the committee on 5 February 1997 discussed various items, including the proposals on outside advertising. The objective was to arrive at common standards(214).
(154) The last meeting of the Market Policy Committee for which any evidence is available took place on 13 May 1997. It was stated that a decision had been taken on investment in publicity material, that Alken-Maes would be sending a letter to publicans on 1 July 1997, and that the other brewers would follow. The participants therefore felt that there was no need for the point to reappear on the agenda.
(155) As regards the questions that had been discussed in the subgroups looking at investment in sales outlets and outside advertising, it was noted that unanimity had not been achieved(215).
4.6. The private-label agreements(216)
(156) Summary
There were a number of meetings at which the market situation with regard to private-label beer in Belgium was discussed, and information exchanged. None of the parties deny that meetings took place. But the information supplied is contradictory. The details therefore cannot be established with absolute certainty. It is not even certain exactly how many meetings took place; but there were in any event no less than the four described below(217).
TABLE
(157) Interbrew's then manager for the off-trade, subsequently general manager for Belgium, who was present at the meetings, has stated the following(218):"There were also meetings between private-label brewers. This was at the initiative of [Interbrew's general manager for Belgium] and [the general manager of Alken-Maes] ..."
"The first meeting took place at the Holiday Inn in Diegem on 9 October 1997, on the instructions of [Interbrew's general manager for Belgium] ... The purpose of the meetings was to map out the private-label beer market in Belgium. The following data was supplied (example) [there follows an imaginary table, with the column headings:] product, volume, customer, type of contract, brewer, price ... I am not sure that the information provided for in the last column was actually exchanged, but that was certainly the intention. The object was that whenever there was a new invitation to tender there would be no undercutting of prices between the four brewers. The brewer who had the contract would bid his price, and the others would make a higher bid ... Because consultation stopped, no adjustments were made, except that Interbrew failed to bid for a particular Aldi contract. The Aldi contract was with one of the other brewers, from memory I think Martens ..."
"At the request of [the managing director of Martens], who also makes sales in the Netherlands, a meeting was convened between the four Belgian brewers and two Dutch brewers ... [The managing director of Martens] was prepared to go on talking in Belgium only if the same thing was done in other markets where Martens supplied private-labels, namely the Netherlands and Germany. Interbrew Belgium acted as a go-between here ..."
"The whole thing was stopped because the participants decided it was too dangerous."
(158) Alken-Maes, Haacht and Martens all say that the meetings were intended to discuss the sorting charge, that is to say a charge payable to retailers for handling empty bottles in crates; Haacht adds that they were also to discuss the growing importance of retailers' own labels and the bullying attitude of the big multiples(219).
(159) Haacht states as follows(220):"the differences between the prices of A-labels and private-labels was growing ... constantly greater, and there was an urgent need for an exchange of views on the situation with a few brewers in the Benelux."
On the meetings in the Netherlands:"we were not active on the Dutch market, and so we had no real interest. Information was exchanged on customers, packaging and volumes ..."
"The conclusion that came out of the meetings was that we should take a firmer line on prices, which were already being quoted very low, but this never happened, because the falling price spiral was not halted."
(160) According to statements made by Alken-Maes(221), "Each participant took his own notes of volumes, types of product and producers. As regards the Dutch market, any exchange of information was refused." At the last of these four meetings: "There was discussion of developments on the market in retailers' own labels in the big multiple chains. I [the marketing manager of Alken-Maes(222)] noted that there was a great deal of mistrust between the different firms at the meeting. My personal conclusion therefore was that the meeting was pointless."
(161) Interbrew has acknowledged(223) that it was a party to an "agreement on price level and market sharing in the private-label market (1997 to 1998)."(224)
5. THE PARTIES' WRITTEN OBSERVATIONS ON THE STATEMENT OF OBJECTIONS
5.1. Danone and Alken-Maes
(162) In its written response to the statement of objections Danone makes the following observations. Alken-Maes indicates that it wishes to be associated with Danone's view of the matter.
5.1.1. The bilateral agreements between Interbrew and Alken-Maes
(163) The supposed link with the French market
Danone argues, first of all, that the Commission accepts that Interbrew was being threatened by Danone in France even though it is not clear from the file that any investigation was carried out at the relevant time into the situation on the French market. This infringes Danone's right to defend itself.
(164) Danone in any event denies that it demanded that Interbrew transfer 500000 hl to Alken-Maes in 1994 and threatened that otherwise matters would be made difficult for Interbrew on the French market (recital 53). Danone submits that this allegation rests entirely on statements made by Interbrew employees in 2000 (recital 54). None of the documents dating from 1994 show that there was any such demand or any such threat. Danone considers that the Heineken document cited to confirm the Danone demand (recital 55) is of doubtful value as evidence, because the author and the context of the document are unclear.
(165) That no threat was made is in Danone's view also shown by the fact that Kronenbourg was in no position to drive Interbrew off the market. In addition, Interbrew's speciality beers Leffe and Hoegaarden were very important in France. In 1994 Danone brought pressure to bear on Alken-Maes to adopt an aggressive marketing policy in Belgium (recital 58), which according to Danone shows that it was acting competitively. Danone points out that it was in Interbrew's interest to preserve its dominant position on the Belgian market (recital 167 below).
(166) Danone submits that at the meeting on 11 May 1994 a Danone representative told Interbrew to put an end to its abuse of its dominant position in Belgium (recital 167 below), as otherwise Danone would take a tougher attitude to Interbrew in France. The reference was to parallel imports from France into Belgium and strict application of the French distribution contracts; according to Danone, Interbrew's speciality beers were at that time tolerated in drinks outlets that had an exclusive contract with Kronenbourg. Danone says that the figure of 500000 hl was mentioned by Alken-Maes at a meeting with Interbrew which took place in connection with the aggressive policy adopted by Alken-Maes. According to Danone, the reference was to the extra volume Alken-Maes needed in order to become profitable. There was no question of a demand made on Interbrew to transfer this volume to Alken-Maes. At the meeting with Danone on 11 May 1994 it was Interbrew that wanted to discuss the strengthening of its position in France, and thus Interbrew that sought to link the Belgian and French markets. Interbrew wanted to reinforce its position in France by taking over Danone's beer division, or sections of it, and by improving the distribution of its speciality beers. At the meeting on 11 May 1994 Danone's intention was merely to introduce the new general manager of its beer division.
(167) Failure to appreciate the abuse by Interbrew of its dominant position on the Belgian market
In the second place, Danone argues that account has to be taken of Interbrew's dominant position on the Belgian market. Not only does Interbrew have a 56 % share of the Belgian market, it also owns the best known beer brands; in six of the eight beer segments, the best-selling beer is an Interbrew brand. Since 1990 Interbrew has strengthened its position in the on-trade by taking over beer wholesalers, with the consequence that many other brewers are now dependent on Interbrew for the distribution of their products on this market. And since the beginning of the 1990s Interbrew has also expanded internationally, to the point where it is now the biggest brewer in Europe and the second biggest in the world. According to Danone, this international expansion was financed by Interbrew's strong position on the Belgian market. Danone submits that it was important to Interbrew that that position be preserved; following the aggressive price policy pursued by Alken-Maes from 1992 onward, Interbrew consequently took the initiative for talks with Alken-Maes.
(168) By virtue of its dominant position, Interbrew was able to decide what new pricing structure should be adopted by the industry as a whole. According to Danone, the pricing structure desired by Alken-Maes was rejected by Interbrew, and Alken-Maes had no alternative but to base itself on Interbrew's system. Interbrew then unilaterally decided to introduce its new pricing system on 1 January 1997, and by doing so imposed its chosen structure on Alken-Maes.
(169) Danone argues that during the relevant period Interbrew abused its dominant position. Danone submits that the Commission has acknowledged that Interbrew was guilty of such conduct, by initiating an investigation into the matter, but takes no account of it in the statement of objections. Danone considers that this is unfair, because the abuse helps to throw light on the relationships between Interbrew and its competitors, including Alken-Maes, in the relevant period. The Commission is therefore wrong to speak of pressure brought to bear on Interbrew by Alken-Maes and Danone with a view to concerted conduct on the Belgian market.
(170) According to Danone, Interbrew abused its position by offering beer at loss-making prices in an attempt to prevail upon cafés to break their exclusive contracts with Alken-Maes. At the meeting on 24 November 1994 (recital 68) Alken-Maes asked Interbrew to stop the abusive conduct, and in that context Interbrew and Alken-Maes agreed to respect one another's tied outlets. Alken-Maes repeated its request to Interbrew to put an end to the abuse in a letter dated 30 January 1995 (recital 72).
(171) Price control in Belgium
In the third place, Danone argues that account has to be taken of the price control system which required the undertakings concerned to apply for authorisation for any price increase. According to Danone, this in practice meant that brewers were required to consult each other regarding the prices of certain beers, and to document their cost structures in detail. The brewers were consequently aware of each others' cost structures and pricing policies, which they discussed together quite lawfully.
(172) The meeting with the beer wholesalers' federation on 28 January 1993 took place in this context, and the parties were therefore not aware that they were breaking the competition rules. At that time prices were still under the supervision of the state, and the brewers were awaiting the response of the Minister for Economic Affairs to an application for a price increase which had been submitted by the CBB. Because of the price control system, Danone and Alken-Maes were also not aware of the unlawful nature of the exchange of information between Interbrew and Alken-Maes.
(173) The initiative was always taken by Interbrew
Danone submits that Interbrew took the initiative in the various discussions and agreements with Alken-Maes. In November 1993 Interbrew took the initiative in increasing prices to the off-trade and asked Danone for Alken-Maes's help thereafter (recital 167). The meeting of 11 May 1994 was held at Interbrew's initiative (recital 166). In 1995, too, Interbrew took the initiative in the discussions with Alken-Maes on a new pricing structure(225). Danone argues that Interbrew likewise took the initiative in the exchange of information(226).
(174) No price or market-sharing agreements
Lastly, Danone denies that there were any price agreements or market-sharing agreements between Alken-Maes and Interbrew in the period 1993 to 1998. In 1993 and 1994 Alken-Maes and Interbrew did talk of putting an end to the fall in prices in the off-trade, but against a background of price control Danone argues that this cannot be regarded as a bilateral agreement on prices. According to Danone, the other discussions in 1993 were not concerned with prices but with the restriction of marketing investment in the on-trade. No price agreement was concluded at the meeting on 9 November 1994 (recital 66); the parties merely noted that distributors could not sell a crate of Jupiler, Stella or Maes Pils for less than BEF 275 without making a loss. Danone acknowledges that from October 1994 onward Interbrew and Alken-Maes consulted together regarding distribution systems in Belgium, and more especially distribution to the on-trade. Danone also acknowledges that in 1994 there was talk of a non-aggression pact in the on-trade, and that in the same year Interbrew and Alken-Maes were in contact regarding a limitation of investment in the on-trade and in outside advertising. According to Danone, discussion of the pricing structure for the on-trade began at the same time. But none of these talks had either the object or the effect of fixing the level of prices. In 1995, according to Danone, only the new pricing structure was discussed, and not prices or market sharing. The discussion of the pricing structure ended in July 1996, after Interbrew unilaterally decided to introduce its new structure on 1 January 1997. Danone submits that the Commission's evidence for the period from July 1996 does not show that there was any continuation of the practices at issue (recitals 91 to 105).
5.1.2. Meetings within the CBB
(175) According to Danone, the policy decisions taken in the CBB were guided by Interbrew. The subjects discussed in the CBB were Interbrew's main concerns of the moment: parallel imports, a new pricing structure, and the reduction of investment in the on-trade. Alken-Maes was also interested in the last of these issues. Danone argues that Interbrew employees held important positions on the CBB working parties at that time, and that the chairman of the CBB was the chairman of Interbrew's board of directors.
5.1.3. The private-label agreements
(176) Danone emphasises that when Fedis demanded that the brewers pay a sorting charge per crate for branded beer (recital 81), the parties decided to exchange their volume data so as to be able to respond. Fedis did not ask that this sorting charge should be payable on private-label beers, arguing that in view of the small volume of private-label beer there was no danger of "free riding". In the parties' view, the volume was greater than Fedis maintained and, as there were no reliable statistics, they decided to exchange their own volume and price figures. The exchange of information on prices may have had the effect that prices did not fall further.
(177) According to Danone, there was no formal non-aggression pact. Even if there was an implicit non-aggression pact, Danone argues that it had no effect. In addition, the private-label market was not mapped out in its entirety, as the foreign brewers refused to take part.
(178) Here too, Danone points to the important role played by Interbrew in the discussions. Interbrew was prepared to pay a charge of BEF [...], for example, which put the other brewers in a financially untenable position.
5.1.4. Penalties
(179) On the question of penalties, Danone argues that at the time of the infringement it formed a single economic unit with Alken-Maes. Danone does not deny that it took part in certain meetings concerning the Belgian market, and that as Alken-Maes's parent company it was aware of certain acts of which Alken-Maes now stands accused. Danone concludes that in accordance with the practice developed by the Commission in its decisions and with the case law of the Court of Justice, the Commission can impose only one fine, either on Alken-Maes or on Alken-Maes and Danone jointly.
(180) Danone refers to the practice of the Commission in its decisions and to the case law of the Court of Justice, and draws attention to the following mitigating circumstances.
(181) First, Alken-Maes, with Danone's approval, cooperated in the investigation, admitted the facts, and immediately put an end to the exchange of information with Interbrew.
(182) Second, the discussions had no effect on market shares, consumer prices or the way in which beer supply contracts were concluded with new drinks outlets, and it has not been shown that there was any allocation of particular customers. The discussions on pricing structures and promotion policy were put into practice only to a very limited extent. Furthermore, the private-label meetings produced no results. According to Danone, it also appears from sales figures and market research for the period 1993 to 1998 that the talks between Interbrew and Alken-Maes had no effect on their market shares or prices.
(183) Third, the effect of the talks was felt in only a very limited geographic area, namely Belgium. There was no exclusion of foreign competition.
(184) Fourth, account has to be taken of the price control that existed in Belgium until 1 May 1993. In this connection Danone cites the Commission Decision of 9 December 1998 in the Greek ferries case.
(185) Fifth, Danone draws attention to the background of crisis against which the disputed practices developed. There was falling demand, overcapacity and pressure from retailers. At no time during the period covered by the statement of objections did Alken-Maes show a profit, so that it had secured no advantage from the discussions with Interbrew, says Danone.
(186) Last, Danone takes the view that account should be taken of the fact that Interbrew had a dominant position on the market, and that Alken-Maes tried to prevail upon Interbrew to stop its abuse of that dominant position. Alken-Maes depended on Interbrew to distribute its beer; in this financially weak and dependent situation, Alken-Maes consulted with Interbrew in order to prevent Interbrew from destroying it.
5.2. Interbrew
(187) Interbrew's response to the statement of objections relates mainly to the potential imposition of penalties. Interbrew draws attention to the following mitigating circumstances.
(188) Interbrew submits that it is clear from the evidence that it did not initially intend to join a cartel. But under pressure from Danone, which threatened to destroy it in France if it did not work together with Alken-Maes, Interbrew found itself obliged to cooperate with Alken-Maes. At the time, Interbrew argues, it had a share of [...] of the French market, which was dominated by Danone with [...] and Heineken with [...]. According to Interbrew, the initiative came in the first place from Danone, which exploited Interbrew's weak position on the French market. There were repeated talks at that time between Interbrew and Danone regarding the possibility of a takeover or partial takeover of Danone's beer business. There was a tendency at Interbrew, therefore, to treat Alken-Maes gently, in order to create goodwill with Danone.
(189) Interbrew submits that the agreements had only a limited influence on the Belgian market, despite the fact that the talks between Danone, Alken-Maes and Interbrew took place at a high level. The companies involved applied the agreements only in part, or not at all, and the talks in the CBB framework produced little by way of results. The private-label agreements were confined to an exchange of information between the parties concerned, and did not lead to any actual implementation of what had been discussed.
(190) Interbrew does not contest the duration of the infringements, which according to the Commission was five years and one day for the bilateral cartel and nine months for the private-label cartel.
(191) Interbrew also invokes the Commission notice on the non-imposition or reduction of fines in cartel cases(227), on the grounds that it qualifies for a substantial reduction in the fine of the kind provided for in section C of the notice, or in any event for a significant reduction of the kind provided for in section D. Interbrew considers that it qualifies for such a reduction on the following grounds.
(192) First, Interbrew does not substantially contest the facts on which the Commission bases its allegations.
(193) Second, since November 1999, when the Commission sent a formal request for information, Interbrew has cooperated closely with the Commission in these proceedings, in a manner which from the very beginning has gone far beyond merely answering the request for information. The facts and the documentation supplied by Interbrew make up a substantial part of the statement of objections. Furthermore, in December 1999 Interbrew undertook an internal investigation, and informed the Commission of new evidence of restrictive practices. Interbrew disclosed the existence of the private-label cartel at a time when the Commission had no information in this regard.
(194) Third, Interbrew was initially reluctant to enter into any agreement with Alken-Maes on the Belgian market, but after Danone threatened to take action against it on the French market Interbrew found itself obliged to work together with Danone and Alken-Maes.
(195) Lastly, and contrary to what is indicated in the statement of objections, Interbrew has put an end to all infringements of the competition rules, and has taken measures to prevent any such infringements in future.
5.3. Haacht
(196) Haacht does not contest the facts regarding the private-label cartel. Haacht emphasises, however, that only the first two meetings were concerned exclusively with the Belgian market. At the third meeting the Belgian brewers explained the system they had set up for private-label beer to the two Dutch brewers present, and the information exchanged at the last meeting concerned the Dutch market only. Haacht does acknowledge that at all four meetings there was an exchange of views which also concerned prices in Belgium. Haacht also accepts the Commission's view that the exchange of information and discussion at the meetings has to be regarded as a form of price agreement and customer sharing.
(197) Haacht points out, however, that in the private-label segment the multiple retailers have been exerting downward pressure on prices for a long time, and that between 1990 and 2000 the prices of private-label beer fell considerably, while the prices of Haacht's branded beers rose markedly over the same period. Haacht estimates that in 1999 total private-label business in Belgium amounted to [...] hl. Haacht supplied about [...] % of this. [...].
(198) In setting the fine, the Commission must, in Haacht's view, take account of the following mitigating circumstances. First, the agreements were never applied, at least by Haacht. Second, the discussions were organised at the initiative of Interbrew and Alken-Maes, with Haacht playing only a follow-my-leader role. Third, Haacht was the only firm with very little international business, and consequently had less experience of the finer points of European competition law. It was not part of an international group with wide experience of European law and specialised departments to handle these questions. Lastly, Haacht points out that it did in fact cooperate with the Commission by spontaneously supplying all the information it was asked for, thus making it unnecessary to conduct an inspection on its premises.
(199) On the final amount of any fine, Haacht argues that the private-label segment accounts for no more than [...] % of its total turnover. As the profits it makes are not used to finance other activities, Haacht takes the view that there is no reason to calculate a fine on the basis of its total turnover.
(200) Haacht also believes it qualifies for a significant reduction in any fine of the kind provided for in section D of the Commission notice on the non-imposition or reduction of fines in cartel cases(228), on the grounds that in its letter of 5 April 2000, before it received the statement of objections, it expressly confirmed that a price agreement had been concluded at the meetings, and that it does not contest the facts on which the Commission bases its allegations.
5.4. Martens
(201) In its reply to the statement of objections Martens, discusses the facts and their assessment and also considers the question of penalties.
5.4.1. Facts and assessment
(202) Martens states that because of its interest in private-label beer, and given the tried and tested culture of consultation in the CBB, which operated in respect of private-label beer as it did elsewhere, Martens accepted Interbrew's invitation to attend the meetings. Martens argues that it has not been shown that Martens expected anything other than to be informed of developments on the market, and it must therefore be presumed that it had no restrictive purpose in mind.
(203) According to Martens, no price agreements or market sharing agreements were concluded at the meetings. Martens cites the statements of employees of Alken-Maes, Haacht and Interbrew in the Commission's possession. It submits that the only unambiguous evidence of the existence of price agreements is Interbrew's statement of 28 February 2000. But Martens throws doubt on the reliability of that statement, in view of Interbrew's involvement in the Interbrew/Alken-Maes cartel, and the Commission's continuing investigation into a possible infringement by Interbrew of Article 82 of the EC Treaty. Martens argues, furthermore, that the statement shows only that Interbrew was a party to such agreements, not that Martens was.
(204) Martens acknowledges that because of its interest in the southern Netherlands region it had an interest in seeing the attendance at the meetings broadened to include Dutch brewers.
(205) Martens submits that from the statements made by the participants at the meetings it is clear that no agreements within the meaning of Article 81 of the EC Treaty were concluded. Nor was there any concerted practice, since the criteria for the existence of a concerted practice formulated by the Court of Justice in the Hüls case are not all met(229). There was no consultation between the firms with subsequent conduct on the market and a relationship of cause and effect between the two. The meetings had no restrictive purpose.
(206) Martens believes that the meetings did not lead to any change in the conduct of the firms concerned on the market, since after the meetings between the four brewers prices continued to fall, and after July 1998 Martens continued to accept invitations to tender from potential customers for private-labels. That Interbrew acknowledges refraining from making a bid for an Aldi contract is in Martens's view irrelevant, because it is not known whether Interbrew has ever made any bid to Aldi, and given the lasting relations there were between Aldi and Martens it is unlikely that Interbrew was previously interested in Aldi.
(207) Martens also submits that according to the judgment of the Court of Justice in the John Deere case the exchange of information is not in itself contrary to Article 81 of the EC Treaty(230).
(208) Martens refers to the Commission Decision in the case of the Zinc Producer Group(231), and argues that the Commission has wrongly failed to show that there was parallel pricing behaviour in the present case.
(209) Martens contends that given its small share of the relevant market there can be no appreciable effect on competition. Martens here refers to the Commission notice on agreements of minor importance which do not fall within the meaning of Article 81(1) of the EC Treaty(232). As there is no agreement, Martens argues that the market shares of the participating undertakings cannot be aggregated.
5.4.2. Penalties
(210) Martens asks the Commission not to impose a fine, in view of the absence of intention or negligence. Martens submits that it did not intentionally infringe the competition rules, because it did not know that the object of the talks might be to restrict competition. Martens further contends that there was a forgivable error or good faith on its part, as the talks at issue took place in the framework of talks within the CBB.
(211) In the alternative, Martens takes the view that in line with the Commission's Decision in the Fenex case(233) it qualifies for a purely symbolic fine, because its attendance at the meetings was characterised by inexperience. Martens did not intend to infringe the competition rules, and was entitled to believe that the meetings formed part of consultations in the framework of the CBB.
(212) In the further alternative, Martens submits that it qualifies for a reduced fine, on the following grounds. No effective price agreements were concluded, and the meetings had no restrictive object. In addition, Martens's economic capacity to bring about any appreciable damage to competition is limited. Martens lacked legal and economic knowledge, being a small player that did not belong to a large economic unit. Martens further argues that account ought to be taken of the specific weight and real influence on competition of its offending conduct.
(213) Martens draws attention to the following mitigating circumstances. It submits that it did not play an active role, but took part in the meetings under the leadership of Interbrew. The infringement did not have any distorting effect on competition, or at most only insignificant effects, and the meetings did not result in any change in market behaviour. There was no damage to consumers, because prices continued to fall after the meetings. Martens emphasises that it secured no advantage as a result of the meetings; it says this is an important consideration for the calculation of the fine, since the Commission has stated, in its 21st Competition Report, that when it assesses fines it may take as its starting point the financial benefit derived. Martens also draws attention to its cooperation during the administrative proceedings: not only did it reply to the Commission's request for information, but after receiving the statement of objections it supplied further documentation. It also cooperated in a manner that speeded up the proceedings. Martens further submits that a fine might exceed its financial capacity. Lastly, Martens observes that the infringement was short-lived, and that it had come to an end before the Commission undertook its investigation.
(214) Martens considers that in any event it qualifies for a reduction in the fine of the kind provided for in section D of the notice on the non-imposition of fines in cartel cases(234), as it cooperated with the Commission investigation at all times and had ended its participation in the infringement at the time of the Commission investigation. In addition, it played no active part in the cartel.
6. LEGAL ASSESSMENT
6.1. Article 81(1) of the EC Treaty
(215) Under Article 81(1) of the EC Treaty, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are prohibited as incompatible with the common market, and in particular those which directly or indirectly fix purchase or selling prices or any other trading conditions, limit or control production, markets, technical development, or investment, or share markets or sources of supply.
6.2. Agreements and concerted practices
(216) The prohibition in Article 81(1) of the EC Treaty concerns agreements between undertakings, decisions by associations of undertakings and concerted practices.
(217) According to established case law, for there to be an agreement within the meaning of Article 81(1) of the Treaty it is sufficient for the undertakings to have expressed their joint intention to behave on the market in a certain way(235).
(218) A written document is not required. There are no requirements as to form and contractual penalties and enforcement measures are even less essential. The existence of the agreement may be explicit or implied from the behaviour of the parties.
(219) Article 81 EC draws a distinction between "concerted practices" and "agreements between undertakings" or "decisions by associations of undertakings"; the object is to bring within the prohibition of that article a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition(236).
(220) The criteria of coordination and cooperation imply at the very least the working out of an actual plan and must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the common market. Although it is correct to say that that requirement of independence does not deprive economic operators of the right to adapt intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market(237).
(221) Thus, behaviour can be regarded as a "concerted practice" where the parties have not reached agreement in advance on a common plan defining their action on the market but have adopted or adhered to collusive devices which facilitate the coordination of their commercial behaviour(238).
(222) Although it is clear from the actual terms of Article 81(1) of the EC Treaty that the concept of a concerted practice implies, besides undertakings' consulting with each other, subsequent conduct on the market, and a relationship of cause and effect between the two, the presumption must be, subject to proof to the contrary which the economic operators concerned must adduce, that the undertakings taking part in the consultation and remaining active on the market take account of the information exchanged with their competitors for the purposes of determining their conduct on that market. That is all the more true where the undertakings consult together on a regular basis over a long period. A concerted practice is caught by Article 81(1) even in the absence of anti-competitive effects on the market(239).
(223) It is not necessary, particularly in the context of a complex infringement over a long period, for the Commission to classify the infringement as consisting exclusively of one or the other form of illegal behaviour. The concepts of "agreement" and "concerted practice" are variable and may overlap. Realistically, it may even be impossible to make such a distinction, since an infringement may simultaneously have the characteristics of both forms of prohibited behaviour, whereas, taken separately, some of its elements may correctly be regarded as one rather than the other form. It would also be artificial from an analytical point of view to split what is clearly a continuous, collective enterprise with a single objective into several forms of infringement. A cartel may for instance constitute an agreement and a concerted practice at the same time(240).
(224) In the PVC II case the Court of First Instance confirmed that "the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as in any event both those forms of infringement are covered by Article [81] of the Treaty"(241).
(225) The Court of Justice confirmed in the Anic case that it follows from the specific wording of Article 81(1) of the EC Treaty that an infringement may result not only from an isolated act but also from a series of acts or from continuous conduct(242).
(226) A complex cartel can thus be regarded as a single continuous infringement for the period of its existence. The agreement may change from time to time, or its mechanisms may be adapted or strengthened to take account of new developments. The validity of this classification is not vitiated by the possibility that one or more elements of a series of acts or of continuous conduct could in themselves constitute a breach of Article 81(1) of the EC Treaty.
(227) Although a cartel is a form of collective behaviour, each party to the agreement may play its own specific role. One or more of them may play a leading role. Internal conflicts and rivalries or even deceit may occur, but will not prevent the agreement from forming an agreement/concerted practice within the meaning of Article 81(1), if the parties pursue a collective and continuous goal.
(228) An undertaking that has taken part in an infringement of Article 81(1) through conduct of its own, which formed an agreement or concerted practice having an anti-competitive object for the purposes of that Article and which is intended to help bring about the infringement as a whole, is also responsible, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement. That is the case where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk(243).
6.3. Nature of the infringements in the present case
(229) The case in point concerns two clearly distinct infringements. The first is the complex of concerted practices and/or agreements between Interbrew and Alken-Maes/Danone, within the framework of the CBB or otherwise, hereinafter referred to as "the Interbrew/Alken-Maes cartel", and the second is the concerted practices between Interbrew, Alken-Maes, Haacht and Martens relating to private-label beer, hereinafter referred to as "the private-label cartel".
6.3.1. The Interbrew/Alken-Maes cartel
(230) The Interbrew/Alken-Maes cartel contains a broad range of anti-competitive agreementsand arrangements.
(231) Bilateral talks took place between Interbrew and Alken-Maes from at least November 1992 (recital 43). At about the same time (October 1992) the two companies also perfected the exchange of information by communicating to each other the sales volumes for all beer sectors (recitals 116 and 125). Off-trade prices were harmonised from at least January 1993 (recitals 44 and 49). In March 1993 Interbrew clearly still had some reservations about extending cooperation (the "Université de Lille" project), on account, inter alia, of the risk of anti-trust proceedings (recital 45). In the second half of 1993 Interbrew continued to hold discussions about raising off-trade prices with a large retailer and wanted to involve Alken-Maes in them as well (recitals 49 and 50). Belgian beer prices were no longer regulated at the time (recital 10).
(232) Clearly under pressure from Danone, Interbrew changed its position as regards extending cooperation in 1994. At a meeting in May 1994 Danone put pressure on Interbrew by setting relations between the two undertakings on the Belgian market in the context of their relations on the French market. In contrast to the Belgian market, where Interbrew had a large and Alken-Maes a small market share, Interbrew in 1994, with approximately [...] %, was the smallest player, relatively speaking, on the French market, where Danone and Heineken had market shares of [...] % and [...] % respectively. Danone's message was that if Interbrew did not help Alken-Maes on the Belgian market - a transfer of 500000 hl, or 4,7 % of total beer consumption in Belgium at the time, was mentioned(244) - then Danone (together with Heineken) could make life difficult for Interbrew on the French market (recitals 53 to 54).
(233) Danone's position that there was no question of a requirement to transfer 500000 hl under the threat of destroying Interbrew in France can be rejected for the following reasons. It is clear that there was such a requirement, not merely from individual statements by Interbrew employees (recital 54), but also from a document of Heineken's (recital 55). The Commission does not share Danone's view that the evidential value of the Heineken document is doubtful because a name and a date are missing. In the formal request for information dated 14 April 2000 the Commission asked about a document that was found during the inspection at Heineken in March 2000 in the middle drawer of the desk of a named member of the board of directors, which document was given the code A5.2 by the Commission. The copy sent by Heineken is the document requested, since it bears the same code plus a description of the place where it was found(245). The origin of the document is thus established. That the document contains confidential data which is not accessible to the parties in the case does not diminish its evidential value.
(234) That Interbrew took Danone's threat seriously is shown by its changed attitude towards extending cooperation with Alken-Maes after May 1994 (recital 56). Danone's explanations of the change in Interbrew's attitude are not convincing. It should be noted that up to 1994 Interbrew and Alken-Maes had struck agreements only over prices in the off-trade and that Interbrew was hesitating about extending cooperation with Alken-Maes, partly because it thought that as market leader it did not need to do so (recitals 45 and 50). Danone's argument that Interbrew attached importance to its position on the Belgian market and therefore, after the introduction of Alken-Maes's aggressive pricing policy, took the initiative to conclude a non-aggression pact, is not sufficient to prompt a different conclusion. The file shows that Interbrew had made it clear to Alken-Maes that it would react to the latter's pricing measures. Danone itself acknowledged that Alken-Maes was ultimately forced to abandon its aggressive pricing policy: it was only working to its own disadvantage, since Interbrew was copying the policy. Danone's argument that its objective before the meeting on 11 May 1994 was simply to introduce the new general manager of its beer division cannot be accepted, since that person had already met Interbrew's CEO at the beginning of 1994 (recital 52).
(235) A more detailed investigation of the French beer markets would not have altered the above conclusion. The opinion of the former general manager of Danone's beer division(246) that Danone's share of the French market was only 16 % is not correct. A Danone document from 1995 shows that Kronenbourg's market share in France in 1994 was [...] % ([...] % for the off-trade and [...] % for on-trade)(247). Furthermore, not only is it sufficiently proven that Danone required Interbrew to transfer a number of hectolitres to Alken-Maes or risk being destroyed in France. There is also the fact that Interbrew took the threat seriously: although no effect was given to the requirement to transfer 500000 hl to Alken-Maes, Interbrew was quite ready from that moment on to extend the agreements with Alken-Maes and no longer to limit them to the exchange of information and agreements on off-trade prices. An investigation of the French market, therefore, would not have altered the conclusion that Danone had successfully put Interbrew under pressure. Even if, after such an investigation, it were to appear that Danone could not have carried out these threats, the conclusion that Danone was successful in its attempt to put Interbrew under pressure is still valid, given the documents in the Commission's possession in this case.
(236) Ultimately, the transfer of a large volume of beer did not take place (recitals 57 and 58), but the parties did reach a truce in July 1994 (recital 56), which was to develop into a comprehensive gentleman's agreement on 9 November that year under the code name already used earlier by Interbrew of "Université de Lille". From that moment on the contacts between Interbrew and Danone/Alken-Maes were no longer limited to prices in the off-trade and the reduction of marketing investment in the on-trade, but were considerably extended. The agreement concluded in November 1994 was divided into the following parts: a general non-aggression pact, agreements on prices and promotions in the off-trade, customer sharing in the on-trade market (originally limited to the "traditional" part of the sector(248)) by perpetuating the then current situation, agreements on advertising and investment in the on-trade, and agreements on a new pricing system for customers in both the on-trade and the off-trade (recitals 58 to 68).
(237) At the meeting on 9 November 1994 between Interbrew and Alken-Maes not only was the "Université de Lille" gentleman's agreement broadly confirmed but a price agreement for the off-trade was also discussed (recital 66). Danone disputes that an agreement on off-trade prices was reached at this meeting (recital 174). The handwritten notes "J=SA=A-M=275,-" (see footnote 80) related, according to Danone, to Alken-Maes's and Interbrew's finding that distributors of Pils lagers (Jupiler, Stella and Maes) could not charge consumers less than BEF 275 a crate without making a loss. This argument of Danone's is not convincing, however. There is nothing in the context to show that this was a comment by the brewers on the (profitability of the) prices applied by the distributors. On the contrary, the handwritten notes are found after the sentence "Pricing in the food to be established"(249). Furthermore, the discussion on 9 November 1994 was a continuation of earlier discussions in October 1994, where the fixing of prices in the off-trade had already been talked about (recitals 60 to 65).
(238) The gentleman's agreement of November 1994 coincides more or less with the submission on 22 November 1994 of a report on the Belgian beer market prepared for the CBB by the consultancy firm Arthur D. Little (recital 135). Interbrew and Alken-Maes agreed that the part of the agreement concerning advertising spending in the on-trade could be implemented within the CBB (recitals 59 and 66). This would be done by the Vision 2000 working party and in particular by the following subgroups, which were set up in January 1995: investment in publicity materials, management of delivered-to-premises and ex-factory pricing (the activities of this subgroup were suspended shortly after it was set up), investment in drinks outlets, and outside advertising (set up later).
(239) In the years that followed (up to January 1998), the gentleman's agreement was implemented further. Regular discussions took place between Interbrew and Alken-Maes, and occasionally with Danone, in which the current state of affairs was reviewed. In 1995 the customer sharing agreement for the on-trade market was broadened to include national customers (recital 73). At the same time, under the chairmanship of representatives of Interbrew and Alken-Maes, discussions took place in sub-groups of the CBB Vision 2000 working party on how the brewers' investments in the on-trade market could be reduced (recitals 133 to 154).
(240) From mid-May 1995 to the end of 1996 intensive talks were held on a new pricing system. The agenda for these includes, in particular, pricing structure and the date for introducing the new system (recitals 74 to 91).
(241) Ultimately, the discussions in the CBB, except those on investments in publicity material for the on-trade (such as glasses and beer mats; see also recital 137), turned out to be fruitless and they were broken off in mid-May 1997 (recitals 154 and 155).
(242) In January 1998 Interbrew and Alken-Maes reviewed their cooperation since the "Université de Lille" agreement of November 1994 (recitals 103 and 104). "Achievements" included: adaptation of advertising credit vouchers (result of the discussions in the CBB on publicity material in the on-trade; see also recitals 147 and 241), pricing (for both the on-trade and the off-trade), respect for each other's ties (in the on-trade), and the non-aggression pact. No results were achieved concerning the regulation of investment (in the on-trade), the participation of other players and outside advertising (in the on-trade, see also recital 241). At the same time, the parties clearly expressed the intention to hold discussions with each other about the on-trade three times a year as from January 1998. No evidence has come to light that this actually happened (recitals 104 and 105).
(243) During the lifetime of the cartel, therefore, there was regular consultation and agreements were struck on the following subjects:
(a) a general non-aggression pact:
in July 1994 a non-aggression pact was concluded between Interbrew and Danone concerning the Belgian market (recitals 56, 104 and 112);
(b) prices and promotions in the off-trade:
as early as 1993 Interbrew and Alken-Maes struck an agreement on price increases and promotions in the off-trade; these were also part of the gentleman's agreement reached in 1994 (recitals 44, 46, 47, 50, 60, 64 to 66, 107, 109 to 112);
(c) customer sharing in the on-trade (both the "traditional" on-trade and national customers):
in 1994 the agreement on respecting each other's ties was included in the "Université de Lille" agreement. The agreement was also called "Project Green" in 1994. Initially it was limited to the "traditional" on-trade, but in 1995 it was extended to national customers (recitals 56, 60, 68, 73 and 111);
(d) the restriction of investment and advertising in the on-trade:
although Interbrew and Alken-Maes only made agreements about reducing investments and advertising in the on-trade from 1994 (in the context of the "Université de Lille" agreement), Interbrew and Danone had already talked about this in 1993. In 1994 Interbrew and Alken-Maes agreed to develop the subject further within the CBB, and this actually occurred until at least May 1997 (recitals 46, 47, 59, 65, 73, 107, 111 to 112 and 133 to 154);
(e) the new pricing structure for the on-trade and the off-trade:
the new pricing structure was also already being discussed by Interbrew and Danone in 1993, and from 1994 was included in the "Université de Lille" agreement. From May 1995 to November 1997 the agreement was implemented with regard to pricing and, especially in 1996, intensive talks took place between Interbrew and Alken-Maes (recitals 45, 47, 65, 76, 78, 84, 84 to 91 and 100);
(f) the exchange of information about sales in the on-trade and the off-trade:
from at least the end of 1991 to November 1999 Interbrew and Alken-Maes exchanged sales data with each other on a monthly basis. From 1992 the data were expressed in volumes (previously they had been in percentages), by type of beer, distribution channel and form of packaging (section 4.4).
(244) All these agreements and forms of consultation are interrelated. Originally, in 1993, agreements were made by Interbrew and Alken-Maes with regard to prices and promotions in the off-trade. At the time, Interbrew and Danone also discussed possibly extending "cooperation" in Belgium, the reduction of marketing investments and investments in the on-trade, and the new pricing system (recitals 45 to 47). In the "Université de Lille" agreement concluded in 1994, which came into existence under pressure from Danone, not only were all these subjects considered but an agreement was made to share out customers in the on-trade. Interbrew's and Alken-Maes's system of exchanging information, and the good "market intelligence" obtained as a result, was instrumental in the implementation of these agreements (recitals 122 and 124).
(245) The above agreements and meetings took place at the highest management level in the undertakings concerned. At Interbrew, those chiefly involved were the CEO, the COO Europe/Asia Pacific/Africa, the general manager for Belgium, the off-trade manager and the on-trade marketing manager. At Alken-Maes, they were in particular the general manager, the off-trade manager and the on-trade manager, and at Danone the chairman and general manager and the general manager of the beer division.
(246) The existence of agreements between Interbrew and Alken-Maes which distorted competition was admitted by (representatives of) Interbrew and Alken-Maes after the Commission had started its investigation (recitals 106 to 112 and 125).
(247) The justification given by Danone for the price agreements in 1993 and the exchange of information is that until 1 May 1993 prices in Belgium were controlled (recitals 171 to 172). However, Danone's arguments must be rejected, for the following reasons. Belgian price control for brewers was in force only until 1 May 1993. The rules, moreover, were such that undertakings could choose to submit requests for price increases individually or collectively. The brewers were thus free to submit individual applications. If they decided to make a collective application, however, it had to be submitted through their trade association. This means that in no way was it the intention that individual undertakings should jointly, i.e. without the agreement of a trade association, submit or, where appropriate, discuss a request for a price increase. The Commission would point out that the members of the CBB were free to determine how far and at what moment the authorised price increase should be applied. Even if the Commission were to accept - which is not the case - that discussions about prices between brewers were due to price control, it is significant that the CBB presented a collective application for a price increase for the last time on 23 December 1992. The agreement of 28 January 1993 (recital 44) is from after that date and thus cannot have been an agreement between brewers within the framework of the CBB regarding a collective application for a price increase. This is already clear, too, from Danone's reply to the statement of objections, in which Danone talks of the meeting with the beer wholesalers. Also significant is that the competent minister authorised the price increase on 6 February 1993 subject to the express condition that there should be no further price adjustments in 1993 (recital 10). Consequently, in no circumstances can price control be a justification for restrictions of price competition(250).
(248) Nor can price control be a justification for the exchange of information. The Commission acknowledges that detailed information had to be submitted together with a request for a price increase. However, the brewers were supposed to supply that information to the CBB, which submitted the collective request, and not to each other. Furthermore, such information was supplied to the CBB only when a request for a price increase was submitted, and not every month, as in the case of Interbrew and Alken-Maes. Moreover, it was admitted by Danone that information was not exchanged in the context of price control, but started when Alken-Maes, as a result of a strike at Interbrew in 1989, delivered Interbrew beer to on-trade outlets tied to Interbrew. In this respect the Commission has also taken account of the fact that price control for the beer sector was abolished as of 1 May 1993.
(249) As a justification for the market-sharing agreements, Danone contends that Interbrew abused its dominant position to the detriment of Alken-Maes by trying to prevail upon public houses which had an exclusive contract with Alken-Maes to breach that contract, inter alia, by selling beer at loss-making prices. Alken-Maes tried to persuade Interbrew to stop this abuse, which resulted in the agreement to respect each other's tied premises. The Commission takes the view that this cannot be regarded as a justification for the market-sharing agreements. In no sense is it the intention that undertakings should mutually conclude non-aggression pacts, thereby infringing Article 81 EC, in order to put an end to a possible breach of Article 82. And the fact that the Commission may in the meantime have started an investigation into a possible infringement of Article 82 by Interbrew does not necessarily mean that the abovementioned conduct of Interbrew should be regarded as an infringement of that Article.
6.3.2. The private-label cartel
(250) From the autumn/winter of 1997 to the summer of 1998 there were four meetings about private-label beer (recital 156).
(251) At these meetings the Belgian brewers involved discussed the private-label segment of the Belgian beer market, and in particular customers and prices. With regard to private-label beer in Belgium, they also exchanged information at any rate on customers and (customer) volumes, and perhaps also on prices (recitals 157, 159 and 160). The discussions and exchange of information were aimed at sharing out customers in Belgium and agreeing or concerting prices (recitals 157 and 159 to 161).
(252) Martens denies that this was the case (recital 203). From the statements of (former) Interbrew employees it is clear, however, that customer-sharing and the price level were topics at the private-label meetings (at each of which Martens was present). Haacht's answer to a request for information from the Commission confirms that the price level was the subject of the four meetings. That this conclusion is not based on a faulty reading of these statements is clear, moreover, from the written replies of Haacht and Interbrew to the statement of objections, in which they acknowledge that prices and customer-sharing were discussed at the meetings. It is also relevant in this respect that Danone, in its reply to the statement of objections, which was also submitted on behalf of Alken-Maes, did not deny that prices and customer-sharing were discussed at the meetings.
(253) The Commission acknowledges that the evidence of concerted action between the four brewers is based only on statements from the undertakings concerned, but does not agree with Martens that this is not enough to conclude that there was an infringement of Article 81 of the EC Treaty. Martens's argument that Interbrew's statements are dubious because of its involvement in other competition proceedings in the Commission (recital 203) cannot be accepted. Haacht's reply is identical, and neither Danone nor Alken-Maes dispute the Commission's version. In addition, it must also be emphasised that each infringement and the consequences thereof for the undertaking or undertakings concerned is assessed on its own merits.
(254) Although it cannot be established with certainty from the available evidence that there was an agreement between the four brewers, it is at any rate proven that there was a concerted practice. The meetings served to influence the market behaviour of competitors and to report on market behaviour to competitors (recitals 157 and 159 to 161). At the meetings not only was information exchanged but prices and customers were discussed. From statements by Interbrew and Haacht, it is clear that the aim of the meetings was, firstly, to prevent a price war and adopt a position on prices and, secondly, to share out customers by not making (real) offers to the customers of other brewers. Since the aims of the meetings were clearly anti-competitive, it is not necessary to show that their consequences were also harmful to competition.
(255) Since it is thus established that Martens did take part in the meetings of a manifestly anti-competitive nature, it must be accepted that its participation was intended to restrict competition, unless the company can demonstrate that it had in fact indicated to its competitors that it was taking part in a different spirit(251). Martens has not been able to do this. Furthermore, it did not terminate its participation in the private-label cartel after the first meeting, but was also present at the following meetings and even tried, as a result of its activities on the Dutch market, to invite Dutch brewers to the meetings as well.
(256) Martens denies that it altered its market behaviour as a result of the meetings (recital 206). According to the Court of Justice, the presumption must be that, subject to proof to the contrary, undertakings taking part in consultation and remaining active on the market take account of the information exchanged with their competitors for the purposes of determining their conduct on that market(252). The evidence supplied by Martens shows, however, only that Martens did not put into effect the results of the meeting, namely the exchange of information and discussions of customers aimed at not triggering a price war on the private-label market and at sharing out customers(253).
(257) Martens's citation of the notice on agreements of minor importance which do not fall under Article 81(1) of the Treaty establishing the European Community(254) (recital 209) serves no purpose. According to point 6 thereof, the notice is likewise applicable to concerted practices. Consequently, in the case of concerted practices too, the assessment of whether the notice is applicable must be based on the aggregate market shares of all the undertakings concerned.
(258) Martens's citation of the John Deere case (recital 207) serves no purpose either. In the case at issue, in contrast to the John Deere case, there is no isolated exchange of information: the brewers also discussed prices and market shares.
(259) Martens's argument that the Commission must demonstrate that there was parallel pricing (recital 208) is based on an inaccurate interpretation of the decision cited by the undertaking. In the Zinc Producer Group case, the Commission considered that under certain circumstances parallel pricing without evidence of direct contact between the undertakings concerned is insufficient evidence of a concerted practice. It cannot be inferred from that decision, therefore, that evidence of meetings is by itself not sufficient to support the conclusion that there is an infringement of Article 81 of the EC Treaty.
(260) That Fedis's request for a sorting charge was the reason for the private-label meetings, as stressed by Danone (recital 176), is no justification for the talks on prices and customers and the exchange of data. As a reaction to the Fedis request, it would have been sufficient for the private-label brewers to provide volume data to a neutral third party, such as the CBB, which could have subsequently compiled the individual data into an overall survey.
6.4. Restriction of competition
(261) Article 81(1) of the EC Treaty specifically states that agreements, decisions and concerted practices which (inter alia)
- directly or indirectly fix purchase or selling prices or any other trading conditions, or
- share markets or sources of supply,
are a restriction of competition.
(262) These were the real purposes of the horizontal agreements in the Interbrew/Alken-Maes cartel. Since price is the chief instrument of competition, the separate secret deals made and mechanisms set up by the producers all had as their ultimate goal to force up prices to their advantage and above the level that would have been attained under free competition. The agreement to respect each other's ties and national customers (recitals 60, 68, 73 and 111) must be regarded as an agreement to share customers on the on-trade market and, hence, as a market-sharing agreement, which is expressly considered by Article 81(1) of the EC Treaty as restrictive of competition.
(263) Market sharing and price agreements were the real goals of the private-label cartel. Since price is the chief instrument of competition, here too the separate courses of conduct adopted by the producers all had as their ultimate goal to force up prices to their advantage, above the level that would have been attained under free competition.
(264) The sharing of markets and the fixing of prices restricted competition within the meaning of Article 81(1) of the EC Treaty.
(265) The most prominent aspects of the (complexes of) agreements, pacts and practices which can be classified as restrictions of competition were:
The Interbrew/Alken-Maes cartel
Regular participation in meetings by, and other contacts between, managers of the undertakings concerned in order to agree and implement/amend the following restrictions:
(a) a general non-aggression pact;
(b) direct and indirect agreement of or consultation on prices and promotions in the off-trade;
(c) the sharing out of customers in the on-trade market (both the "traditional" on-trade and national customers);
(d) the restriction of investment and marketing in the on-trade market;
(e) the agreement of a new pricing structure for both the on-trade and the off-trade;
(f) the exchange of information on sales in both the on-trade and the off-trade;
The private-label cartel
(a) consultation regarding customer-sharing and prices;
(b) the exchange of information about customers.
(266) Given the clearly restrictive purpose of the abovementioned agreements and practices, it is not necessary to investigate how far each restriction contributed to the achievement of the intended purpose in order to decide if there is an infringement of Article 81(1) of the EC Treaty(255). It should be noted here that the restrictions of competition referred to in recital 265 are only parts of the Interbrew/Alken-Maes cartel, on the one hand, and the private-label cartel, on the other hand, and that the Interbrew/Alken-Maes cartel and the private-label cartel should each be regarded as a separate infringement.
6.5. Effect on trade between Member States
(267) As the Court of Justice has consistently held, in order that an agreement between undertakings may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States(256).
(268) The application of Article 81(1) of the EC Treaty to a cartel is not confined to that proportion of the parties' sales that actually involves the carriage of goods from one State to another. Still less is it necessary, in order for these provisions to apply, to show that the individual conduct of each participant, as distinct from the cartel as a whole, has affected trade between Member States(257).
(269) It is clear from recitals 19 and 21 that, even on the basis of the figures provided by Interbrew, considerable quantities of beer are imported into and exported from Belgium. By far the largest part of this trade is with other Member States.
(270) Price differences between Belgium and other Member States may cause parallel trade flows and do in fact do so (recitals 19 and 20).
(271) The ultimate purpose of the Interbrew/Alken-Maes cartel was to set prices at a higher level than would have happened in normal competition. For this reason alone it can be assumed that this complex cartel agreement had an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. In addition, the following remarks should also be made about the cartel agreement. The cartel must be seen in the context of relations on the French market (recitals 51 to 55). The French parent company of Alken-Maes played an active role in the cartel.
(272) Secondly, the partial implementation of the cartel within the framework of the CBB must also be seen in the light of the Scenario 2000 study commissioned by the CBB and carried out by Arthur D. Little. The study was prompted, inter alia, by the opening of Europe's internal borders and the consequences thereof for the Belgian market. One of its aims was to gain an understanding of the beer trade and the on-trade sector in Belgium, on which brewers could base their commercial strategy (recital 129).
(273) For the above reasons, the outlined restrictions of competition in the Interbrew/Alken-Maes cartel may distort trade patterns in the brewing sector from the course which they would otherwise have followed. The Commission must therefore find that the restrictions of competition may affect trade between Member States(258).
(274) The purpose of the private-label cartel was to set prices at a higher level than would have happened in normal competition. Here again, for this reason alone it can be assumed that the cartel had an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. In addition, the participants in the cartel established a link with neighbouring markets (Netherlands, Luxembourg and Germany). At two of the meetings Dutch producers of private-label beer were also present (recitals 156, 157 and 159).
(275) For the above reasons, the outlined restrictions of competition in the private-label cartel may distort trade patterns in the brewing sector from the course which they would otherwise have followed. The Commission therefore finds that the restrictions of competition may affect trade between Member States(259).
6.6. Article 81(3) of the EC Treaty
(276) The agreements and practices which are the subject of this decision were made in secrecy and were not notified to the Commission. Consequently they cannot be exempted from the application of Article 81(1) of the EC Treaty. In any event, the practices of the undertakings concerned do not in principle satisfy the tests of Article 81(3) of the EC Treaty, since the different parts of the cartel and the combination of them are clearly anti-competitive. More specifically, the Commission is not aware of any information which may lead to the conclusion that that the four conditions for granting an individual exemption are met.
7. ADDRESSEES OF THIS DECISION
(277) This decision is addressed to the undertakings which are directly involved in the infringements.
(278) For the Interbrew/Alken-Maes cartel, these are Interbrew and Alken-Maes. Since Danone had control over Alken-Maes during the infringement and was itself involved, this decision is also addressed to Danone.
(279) Although part of the cartel operated within the framework of the CBB, the CBB itself cannot be charged with taking part in the infringement. Interbrew and Alken-Maes used the CBB only as a forum for the further elaboration and implementation of the bilateral cartel agreements. The CBB therefore did not play a separate role in the cartel(260).
(280) For the private-label cartel, the addressees are Interbrew and Alken-Maes together with Haacht and Martens. Although Danone had control at the time over Alken-Maes, the Commission has no evidence that it too was actually involved in the private-label cartel. Consequently, Danone is not an addressee as regards the private-label cartel.
8. DURATION OF THE INFRINGEMENT
8.1. The Interbrew/Alken-Maes cartel
(281) The Commission has evidence concerning the Interbrew/Alken-Maes cartel from at least 28 January 1993 to 28 January 1998 inclusive (recitals 44 and 103). On 28 January 1993 a report was made of a first meeting with a clearly anti-competitive aim. On 28 January 1998 the last meeting within the framework of the cartel took place in respect of which the Commission has documentation. The duration of the infringement is thus five years and one day. It is true that the exchange of information began earlier and finished later, but these proceedings, as formally initiated by the Commission's adoption of the statement of objections on 29 September 2000, relate only to the cartel as it existed in its entirety. There is also no evidence that the proposed discussion of the on-trade, mentioned in the notes of the marketing manager for Belgium (recital 104, point 3), actually took place.
(282) Danone disputes that the infringement lasted as long as this. According to Danone, the discussions between Alken-Maes and Interbrew started only on 12 October 1994 and had already ended in July 1996, when Interbrew decided to introduce its new pricing structure as from 1 January 1997. This argument, however, ignores the evidence held by the Commission of earlier discussions between Alken-Maes and Interbrew, starting on 28 January 1993. As already explained above, Danone's justifications of these discussions are irrelevant (recitals 247 and 248). The fact that only agreements from 12 October 1994 onwards were reviewed at the meeting between Alken-Maes and Interbrew on 28 January 1998 does not alter this. On that date Interbrew and Alken-Maes discussed the agreements existing between them. The fact that, owing to circumstances, the discussion was not followed up does not mean that this was not a meeting within the framework of the existing agreements and consultation between Interbrew and Alken-Maes.
(283) Contrary to what Danone states, the Interbew/Alken-Maes cartel was not ended in July 1996. Interbrew has acknowledged that the infringement lasted until January 1998 (recital 111) and one of the Alken-Maes employees who was involved in the pricing discussions at the time has stated that cooperation with Interbrew ceased in November 1997 (recital 100). The Commission also has evidence that discussions in the context of the cooperation between Interbrew and Alken-Maes took place on 9 December 1996 (by telephone), 17 April 1997 and 28 January 1998 (recitals 91, 95, 96, 103 and 104). The fact that Alken-Maes also had a study carried out at the time on the (draft) pricing system of Alken-Maes and Interbrew does not alter the conclusion that the infringement continued, given the abovementioned evidence held by the Commission.
(284) Contrary to what Danone states, the subject of the discussion on 17 April 1997 was the coordination of the market behaviour of Interbrew and Alken-Maes/Danone. In view of Interbrew's statement on the content of this discussion (recital 96), it cannot be accepted that what was discussed was a possible takeover of Kronenbourg/Alken-Maes by Interbrew, which moreover is not proven by Danone.
(285) At the 28 January 1998 meeting the subject discussed, according to the notes of the Interbrew representative present, was the relations between Interbrew and Alken-Maes. Not only were the results of previous cooperation reviewed, but current aspects and the method of consultation were also discussed (recital 104). Danone's statement that the meeting on 28 January 1998 was between a brewer (Alken-Maes) and its distributor for the Brussels region (Interbrew) is not plausible. Nor does it appear so from the evidence held by the Commission. On the contrary, it is clear from statements by representatives of both Interbrew and Alken-Maes that the discussion was unproductive and that afterwards the contacts ceased (recital 105).
8.2. The private-label cartel
(286) From the evidence available to the Commission it is clear at any rate that the meetings took place between 9 October 1997 and 7 July 1998 (recital 156). The duration of the infringement is therefore at least approximately nine months. This is not disputed by the undertakings concerned.
9. PENALTIES
9.1. Article 3 of Regulation No 17
(287) Where the Commission finds that there is infringement of Article 81(1) of the EC Treaty, Article 3 of Regulation No 17 empowers it to require the undertakings concerned to bring such infringement to an end.
(288) An employee of Interbrew who was involved at the time in the Interbrew/Alken-Maes cartel stated that after the meeting on 28 January 1998 "nothing more happened" (recital 105). Nor does the Commission have any evidence that either of the parties continued the anti-competitive behaviour after 28 January 1998.
(289) With regard to the exchange of information between Interbrew and Alken-Maes, it is also relevant that Alken-Maes sent the Commission a copy of its letter of 5 November 1999 terminating the exchange.
(290) As far as the private-label cartel is concerned, the participants have stated that there were only four meetings, the last of which took place in July 1998 (recital 156). In addition, one of the employees involved has stated that the consultation was stopped (recital 157). The Commission has no evidence that the consultation continued after the last meeting.
(291) In reply to the statement of objections, Interbrew stated that both the Interbrew/Alken-Maes cartel and the private-label cartel had already been terminated. Interbrew refers in this respect to its letter of 29 February 2000, in which it stated that it had terminated the infringements and taken far-reaching measures to prevent a repetition of such breaches of the competition rules. One of the measures is the introduction of a comprehensive "compliance programme" consisting, inter alia, of a six-monthly internal and external audit. This makes clear among other things that Interbrew employees are not allowed to make agreements on prices, conditions of sale, market-sharing and the exchange of information.
(292) In view of the above, it is not necessary to require the undertakings concerned to terminate the infringement.
9.2. Article 15(2) of Regulation No 17
(293) Under Article 15(2) of Regulation No 17, the Commission may by decision impose on each undertaking fines of from EUR 1 000 to EUR 1 000 000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently, they infringe Article 81(1) of the EC Treaty.
(294) In determining the amount of a fine the Commission must take all relevant circumstances into account and in particular the gravity and duration of the infringement. The method applied is that set out in the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty(261).
9.2.1. The Interbrew/Alken-Maes cartel
9.2.1.1. On whom should fines be imposed?
(295) The Commission considers that, with regard to the Interbrew/Alken-Maes cartel, it is appropriate to impose a fine on Interbrew and Danone. Danone is responsible for both its own involvement in the infringement and that of Alken-Maes. A parent company which is actively involved in the participation of one of its subsidiaries in a cartel can be held responsible for the behaviour of that subsidiary(262). As Danone itself has stated, it formed an economic unit with Alken-Maes at the time of the infringement of Article 81(1). Moreover, at the time, Danone was not only the parent company of Alken-Maes, but was also itself directly involved in the cartel. Danone acknowledges having taken part in meetings concerning the Belgian market and having been aware of certain practices. It should therefore be held responsible for both its own involvement in the cartel and that of Alken-Maes.
9.2.1.2. Intention or negligence
(296) It is clear from the facts that all participants in the cartel intended to make agreements about a general non-aggression pact, prices and promotions in the off-trade, sharing customers in the on-trade (both the "traditional" sector and national customers), the restriction of investment and advertising in the on-trade, the new pricing structure for the on-trade and the off-trade, and the exchange of information about both on-trade and off-trade sales. The Commission considers that this infringement should be regarded as intentional, since the parties could not possibly have been unaware that the above agreements or the combination of them were intended to restrict competition.
9.2.1.3. Gravity of the infringement
(297) A horizontal agreement or consultation such as the one in question - comprising a general non-aggression pact, the direct and indirect agreement of or consultation on prices and promotions in the off-trade, the sharing of customers on the on-trade market, the restriction of investment and advertising on the on-trade market, the agreement of a new pricing structure for the on-trade and the off-trade, and the exchange of information about sales in the on-trade and the off-trade - is by nature a very serious infringement. The system for exchanging information between Interbrew and Alken-Maes made it easier to achieve the objective of those agreements. Since price is one of the most important factors of competition, the various secret agreements and mechanisms were ultimately intended to force up the price above the level it would have been in conditions of free competition, to the detriment of consumers.
(298) In addition, the cartel as a whole concerned all segments of the beer market and both the on-trade and the off-trade. The Commission has also taken into account that the discussions between Interbrew on the one hand and Alken-Maes and Danone on the other were conducted at the highest management level. It is also significant that the agreements and concerted actions concerned a wide variety of competition parameters (prices and promotions, customers, investment, advertising, pricing structure and the exchange of sales data).
(299) Danone disputes that there were any price or market-sharing agreements. However, it is clear from the evidence available and the statements of both Interbrew and Alken-Maes that price and market-sharing agreements were actually concluded (section 6.3.1).
(300) The various secret agreements of the parties were aimed at setting higher prices to their advantage above the level that would be attained under free competition. From the evidence available to the Commission, it is clear that the non-aggression pact and the agreements about customer-sharing in the on-trade market (in part), the restriction of advertising in the on-trade, the agreement of a new pricing structure for the on-trade and the off-trade, and the exchange of information about on-trade and off-trade sales were regarded by Interbrew and Alken-Maes at the meeting on 28 January 1998 as having been achieved (recital 104). Interbrew has also acknowledged that there were agreements between it and Alken-Maes concerning promotions in the off-trade (recital 109). Moreover, Interbrew and Alken-Maes have acknowledged that every month they exchanged detailed sales data with each other (section 4.4). The Commission realises that, on the basis of the available evidence, it must be accepted that certain parts of the cartel were not, or not fully, implemented by Interbrew and Alken-Maes: certain parts of the gentleman's agreement were not implemented (recitals 92, 107, 236 and 242), the agreement on sharing out customers in the on-trade market was not fully respected by Interbrew (recital 72), and the discussions in the CBB had limited results (recital 241). This does not justify the conclusion, however, that the cartel as such had no, or only a limited effect on the market(263).
(301) The relevant geographic market is the whole territory of Belgium; this constitutes a substantial part of the common market.
(302) Taking all the above circumstances (recitals 297 to 301) into account, the Commission has reached the conclusion that the infringement in question must be regarded as very serious.
(303) In fixing the amount of the fine, the Commission also takes account of the effective economic capacity of offenders to cause significant damage to other operators.
(304) The participants in the cartel accounted for about 70 % of total beer consumption, and about 80 % of all Pils consumption, in Belgium at the time. However, there was a considerable difference in size between Interbrew, the number one in Belgium, and Alken-Maes, the number two. With an average market share of about 55 %, Interbrew was, and still is, the market leader in Belgium. Alken-Maes had an average market share at the time of some 15 %.
(305) The fine must be set at a level which ensures that it has a deterrent effect. Here the Commission will take account of the fact that Interbrew and Danone are large international undertakings. It is important, too, that Danone is a multi-product company.
(306) The Commission will also take account of the fact that Interbrew on the one hand and Alken-Maes and Danone on the other have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law.
(307) In calculating the fine to be imposed on Interbrew, the Commission therefore considers it appropriate, given the gravity of the infringement, to impose a fine of EUR 45 million. For Alken-Maes/Danone, a fine of EUR 25 million is regarded as appropriate.
9.2.1.4. Duration of the infringement
(308) For both Interbrew and Alken-Maes the duration of the infringement is five years and one day. The infringement is therefore one of medium to long duration. Bearing in mind that the intensity of the cooperation decreased considerably at the end of the cartel, it is considered appropriate to increase the fine by 45 % for both Interbrew and Danone.
(309) The basic amount of the fine is therefore EUR 65,25 million for Interbrew and EUR 36,25 million for Danone.
9.2.1.5. Aggravating circumstances
(310) It is clear from the evidence that in August and November 1993 Interbrew played a leading role concerning the price agreements in the off-trade (recitals 49 and 50). In 1995 Interbrew also took the initiative concerning price discussions with Alken-Maes (recitals 74 and 145). At the same time it is clear, inter alia, from a statement originating with Interbrew itself, that the exchange of information between Interbrew and Alken-Maes in 1992 (and perhaps earlier) was started on Interbrew's initiative (recital 122).
(311) The extension of the cooperation between Interbrew and Alken-Maes in 1994, which led to the comprehensive gentleman's agreement known by the code name "Université de Lille", was however the result of Danone's intervention in relation to the Belgian market (recitals 232 to 234).
(312) Contrary to what Danone has stated, it cannot be concluded from the available evidence that Interbrew took the lead in order to realise the cartel's aims and agreements within the CBB. Interbrew and Alken-Maes agreed on 29 August 1994 to use the CBB as a forum for achieving certain parts of the cartel (recital 133), which in fact occurred after Interbrew and Alken-Maes had reached agreement in November 1994 over the "Université de Lille" gentleman's agreement, and the Vision 2000 report prepared by Arthur D. Little and commissioned by the CBB had been presented (recital 135 et seq.). It should be noted in this respect that both Interbrew and Alken-Maes were represented in the Vision 2000 working party and that the chairmen of the four relevant subgroups were all from Alken-Maes, except for the subgroup on investment in sales outlets, which was chaired jointly by representatives of Interbrew and Alken-Maes (recitals 137 and 144).
(313) Since both Danone and Interbrew took initiatives concerning various parts of the cartel, the Commission concludes that none of the undertakings concerned played a leading role in the cartel as a whole.
(314) It is also significant that Danone (called BSN at the time) has already been found to have infringed Article 81 of the EC Treaty twice before(264). As in the present case, the previous infringements consisted in the exchange of information, restrictions concerning prices and terms and conditions of sale and, in one situation, market-sharing agreements as well. Since Danone has committed a further infringement after being punished for similar breaches, this is a repeat infringement(265). The fact that Danone operated under a different name at the time does not alter the above. Nor does the fact that both the earlier infringements concerned a different sector from the present one prevent this from being a similar breach, especially given the nature of those infringements. The Commission regards it as relevant in this respect that during the period(266) in which the three infringements were committed by BSN/Danone the same person occupied the post of chairman and chief executive. In addition, at least two of Danone's directors who were responsible for food operations during the bilateral cartel were employed in the company's plate glass division at the time of the earlier infringement(s)(267).
(315) Moreover, Danone threatened to destroy Interbrew on the French market if 500000 hl of beer were not transferred to Alken-Maes. This led to an extension of the cooperation between Interbrew and Alken-Maes (recitals 232 to 234 and 236). With regard to Danone's role, therefore, the conclusion must be that it compelled Interbrew to extend the cooperation, by threatening to take measures against Interbrew if the latter did not cooperate.
(316) Given the threat of retaliatory measures and the fact that this was a repeat infringement, an increase in the basic fine of 50 % is regarded as appropriate in Danone's case.
9.2.1.6. Attenuating circumstances
(317) The fact that infringing agreements or rules of conduct are not actually applied is an attenuating circumstance. The Commission acknowledges that it is clear from the evidence that the parties did not fully apply each specific agreement of the cartel (recital 300). This does not mean, however, that the cartel as such was not actually applied. The fact that some parts of the infringement were not put into effect is in itself not sufficient to be able to say that there is an attenuating circumstance in the above sense.
(318) As far as Alken-Maes is concerned, however, it must be borne in mind that it terminated the exchange of information with Interbrew after the Commission's inspection on 26 and 27 October 1999.
(319) This circumstance justifies a reduction of the basic amount of the fine by 10 % in the case of Alken-Maes/Danone.
(320) The Belgian system of price control is not a reason for reducing the fine. Price control in the beer sector was only in force until 1 May 1993. Furthermore, this system obliged the parties to request approval for a price increase either individually or collectively through their trade association, not to conclude agreements or consult about prices (recital 247). Danone referred in this connection to the Commission's decision concerning Greek ferries(268). In that case, the Commission took account of the attenuating circumstance that during the period of the infringement a collective proposal for domestic rates had been expected from the undertakings concerned themselves and was subsequently confirmed by the Greek government. Because of this, there could have been some doubt about whether the fixing of international rates constituted an infringement. This situation is not comparable with the present case for the following reasons. First, legislation did not provide that brewers were to submit a collective request for a price increase themselves; they were to act through their trade association. Consultations between the brewers about their prices and cost structures were not the direct consequence of the Belgian system of price control, nor were they expected of the brewers by the Belgian government. Second, price control concerned the approval of price increases, not the ratification of nominal prices proposed by undertakings.
(321) Danone also submits that the Commission must take account of the crisis in the Belgian beer market. The Commission acknowledges that in the 1990s demand was declining slightly (recital 6), which possibly led to some overcapacity, and that there was pressure from distributors in the off-trade. This situation is not comparable, however, with cases where the Commission has ruled that in determining the amount of the fine account must be taken of a crisis on the market(269). The Commission would point out in this respect that the decline in Belgian beer production at the time was appreciably less steep than that in beer consumption (recital 6). The individual financial situation of one party to an infringement, in this case Alken-Maes, cannot lead to the reduction of the amount of the fine. This would be tantamount to conferring an unjustified competitive advantage on undertakings least well adapted to the requirements of the market(270). The fact that an undertaking suffers a loss, moreover, does not mean that it has derived no advantage from an infringement of the competition rules, since that advantage may consist in a reduction of its losses.
(322) Danone also states that account must be taken of the position of dependence which Alken-Maes was in at the time of the infringement with regard to Interbrew. The Commission takes the view that, as already discussed above (recital 247), Alken-Maes's attempt to put an end to a possible infringement of Article 82 of the EC Treaty by Interbrew cannot be accepted as a defence for participation in a cartel. Also, Danone's statement passes over the involvement of Danone, Alken-Maes's parent company, in the cartel. Lastly, the difference in size between Alken-Maes and Interbrew has already been taken into account in determining the basic amount of the fine.
9.2.1.7. Commission notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases
(323) Interbrew and Alken-Maes have both invoked the Commission notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases (hereinafter also referred to as "the notice").
(324) The information which Interbrew supplied after a request for information was sent under Article 11 of Regulation No 17 contributed significantly to proving the relevant facts. This cooperation with the Commission went further than simply replying to the request for information within the meaning of Article 11 of Regulation No 17. Furthermore, Interbrew has not substantially disputed the facts on which the Commission is basing the allegation of infringement.
(325) Interbrew's cooperation justifies a reduction of 30 % in the fine under section D.2. of the notice.
(326) Although Alken-Maes stated during the proceedings that it did not dispute the facts and the existence of the infringement, it, like Danone, declared, in reply to the statement of objections, that the facts were not in dispute only in so far as they were based in part on information supplied to the Commission by Alken-Maes(271). Moreover, Danone, on its own behalf and on behalf of Alken-Maes, cast doubt on the existence of the infringement as described by the Commission in the statement of objections. This does not justify a reduction of the fine within the meaning of the second indent of section D.2. of the notice.
(327) Alken-Maes did, however, supply information about the existence and substance of the infringement which went further than answering the request for information under Article 11 of Regulation No 17. The Commission considers that this circumstance justifies reducing the fine.
(328) In Danone's case, therefore, the Commission regards a reduction of 10 % in the fine as appropriate under the first indent in section D.2 of the notice.
9.2.1.8. Conclusions regarding the amount of the fines
(329) A fine of EUR 45,675 million should be imposed on Interbrew for its participation in the Interbrew/Alken-Maes cartel.
(330) A fine of EUR 44,043 million should be imposed on Danone for its own participation and that of its subsidiary, Alken-Maes.
9.2.2. The private-label cartel
9.2.2.1. On whom should fines be imposed?
(331) As regards the private-label cartel, a fine should be imposed on the undertakings which committed this infringement, namely Interbrew, Alken-Maes, Haacht and Martens. Although Alken-Maes was a subsidiary of Danone at the time, the Commission does not consider it appropriate to attribute the infringement to Danone, since Danone itself was not involved in the private-label cartel(272).
9.2.2.2. Intention or negligence
(332) As consistently held by the Court of Justice and the Court of First Instance, it is not necessary for an undertaking to have been aware that it was breaching Article 81 or infringing the prohibition contained in that provision for an infringement to be regarded as intentional. It is sufficient that it could not have been unaware that the contested conduct had as its object or effect the restriction of competition in the common market and entailed actual or potential consequences for trade between Member States(273).
(333) The Commission considers that none of the participants in the private-label cartel could have been unaware that their conduct was intended to restrict competition within the common market. Direct contacts between competitors concerning prices and the distribution of customers are invariably regarded as suspect from a competition standpoint, irrespective of whether they take place within a trade association, as Martens submitted in order to demonstrate its ignorance in the matter. Nor could the undertakings concerned have been unaware that their conduct entailed possible consequences for trade between Member States.
(334) Even if the discussions did take place within the CBB, as alleged by Martens in order to show that there was a forgivable error or good faith on its part, there would still be an intentional infringement of Article 81(1) EC by the participants in those discussions. This defence of Martens's is therefore irrelevant to the assessment of whether it committed the infringement intentionally.
9.2.2.3. Gravity of the infringement
(335) Horizontal coordination of prices and market sharing is by its nature a very serious infringement. The exchange of information was a means of putting this coordination into effect.
(336) Martens disputes that there were any price or market-sharing agreements. It is clear from the available evidence and the statements of both Interbrew and Haacht, however, that prices and market sharing were coordinated at the four meetings (recital 252). Apart from the inherently serious nature of such conduct, the Commission, in assessing the gravity of the present infringement, also takes account of its impact on the market and the size of the relevant geographic market.
(337) As regards the impact on the market, it should be noted that the various secret practices of the parties were aimed at sharing out customers and ultimately at fixing prices above the level they would have attained under conditions of free competition. The Commission acknowledges that it does not have proof that the consultation, with perhaps one exception, resulted in any alteration of the market behaviour of the undertakings concerned. It is clear, in any event, that at the meetings of the private-label cartel customer sharing and prices were discussed and that information was exchanged in this respect. The fact that information on private-label beer in Belgium may have been exchanged between the Belgian brewers only once does not make this any less serious. To achieve the aim of the consultation (not to bid against each other's contracts, in order to prevent a price war), it was not necessary to exchange information on a regular basis. It cannot simply be concluded, therefore, that the cartel as such had no, or a limited, impact on the market(274).
(338) As regards the size of the relevant geographic market, the Commission also takes into account that while the meetings may have concerned the whole territory of Belgium they were limited to the private-label Pils segment of the market (which accounts for 5,5 % of total beer consumption in Belgium - recital 8).
(339) In view of the above, the Commission considers that this infringement is a serious breach of Article 81(1) of the EC Treaty.
(340) In fixing the amount of the fine, the Commission must also take account of the effective economic capacity of offenders to cause significant damage to other operators and must set the fine at a level which ensures that it has a deterrent effect.
(341) In order to allow for the actual capacity of the undertakings concerned to cause significant damage on the beer market in Belgium, in particular in the private-label segment, the Commission therefore considers it appropriate to differentiate between those undertakings. Taking account of their turnover in private-label beer, the Commission divides the undertakings into two categories. Haacht and Martens, who had the highest turnovers in the private-label segment, form one category. Interbrew and Alken-Maes, who had substantially lower turnovers in the segment, form the second.
(342) The Commission therefore considers it appropriate to impose the following fines in respect of the gravity of the infringement:
on Haacht and Martens: EUR 300000;
on Interbrew and Alken-Maes: EUR 250000.
(343) The Commission considers that the basic amount of the fine thus calculated for Interbrew and Alken-Maes should be adjusted in order to ensure that the fine has a sufficiently deterrent effect, and to take account of the fact that, in contrast to Haacht and Martens, Interbrew, as a large international undertaking, and Alken-Maes, as a member of an international group, have easier access to legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law.
(344) To allow for their respective sizes and general resources, the Commission considers that the amount of the fines calculated in recital 342 should in Interbrew's case be multiplied by a factor of 5, and in Alken-Maes's case by a factor of 2. This results in a fine of EUR 1250000 for Interbrew and a fine of EUR 500000 for Alken-Maes.
9.2.2.4. Duration of the infringement
(345) The duration of the infringement is fixed at nine months, which is not disputed by any of the parties. This does not warrant an increase in the fine.
(346) For each of the undertakings concerned, therefore, the basic amount of the fine is as set out in recitals 342 and 344.
9.2.2.5. Aggravating circumstances
(347) From a statement originating with Interbrew it is clear that Interbrew and Alken-Maes took the initiative to hold meetings about private-label beer (recital 157). This has been confirmed by Haacht in its reply to the statement of objections (recital 198). The Commission therefore considers it appropriate to increase the basic fine by 30 % in the case of both Interbrew and Alken-Maes.
9.2.2.6. Attenuating circumstances
(348) The parties submit as an attenuating circumstance that they did not actually apply the infringing agreement or practice. In particular, they state that the practice did not alter market behaviour. The Commission acknowledges that on the basis of the available evidence there is no proof, with possibly one exception, that the parties refrained from bidding for other brewers' customers in order to prevent a price war. It cannot be inferred from this, however, that the infringing practice was not applied, since at the four meetings the parties did actually exchange information on customers and volumes and discussed customers and prices.
(349) Haacht and Martens have both indicated that their participation in the cartel should be regarded as passive. The Commission points out, however, that both undertakings played an active part in the private-label cartel. They were present at all the meetings known to the Commission. In addition, Haacht has acknowledged that it exchanged information about private-label beer in Belgium with the other brewers involved and made agreements on prices and sharing customers. It is also significant that Martens took an active part in the discussions, as is substantiated by its attempt to invite Dutch private-label brewers to the meetings. Martens has not shown that it was reluctant to take part in the meetings.
(350) Nor can the need of both Haacht and Martens to gather information about developments concerning private-label beer justify the infringement of the Community competition rules.
(351) There is no reason why the fine for Haacht should reflect the fact that the company's sales of private-label beer account for a small proportion of its total turnover. The starting points for calculating the amount of the fine are the gravity and duration of the infringement. The Commission acknowledges that in the past it has set fines according to a basic rate which was a percentage of the relevant turnover. Under Article 15(2) of Regulation No 17, however, the only restrictions on the Commission's freedom to determine the fine are the legal thresholds mentioned in that provision, which refer, inter alia, to the total turnover of the participating undertakings. For the rest, the Commission took due account of the economic importance of the specific activity to which the infringement related when it assessed the gravity of the infringement.
(352) Recital (351) also applies to Martens's argument that, when calculating the fine, the Commission must take account of the fact that Martens, according to its own submission, did not benefit as a result of the meetings. The fact that the Commission has in the past taken the benefit obtained as the starting point for calculating the fine does not oblige it to do the same in the present case. The Commission will take the amount of gains improperly made from the infringement into account as an aggravating circumstance, where it is necessary to increase the penalty in order to exceed the profit made from the infringement. It cannot be inferred that where there is no such need that fact should be regarded as an attenuating circumstance.
(353) Martens's argument that a symbolic fine should be imposed, in view of the decision in the Fenex case(275), must be rejected. The Court of Justice has held that the Commission's judgment concerning the fines it considers necessary may vary from case to case, even if the cases are similar(276). Regardless of whether there was inexperience on Martens's side, the present case is not comparable with the situation in the Fenex case, which involved negligence rather than intention. Moreover, the difference between Interbrew and Alken-Maes on the one hand and Martens and Haacht on the other as regards legal and economic knowledge has already been taken into account in the assessment of the gravity of the infringement (recital 343).
(354) Martens and Haacht both asked the Commission to take account of their difficult financial situation when determining the amount of the fine. The individual financial situation of a party to an infringement cannot be a reason for reducing the amount of the fine. This would be tantamount to conferring an unjustified competitive advantage on undertakings least well adapted to the conditions of the market(277).
9.2.2.7. Commission notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases
(355) All the undertakings concerned have invoked the notice.
(356) Interbrew considers that, in accordance with section C, it is eligible for a substantial reduction of the fine. The Commission acknowledges that Interbrew drew the Commission's attention to the private-label cartel before the Commission had undertaken an investigation into the infringement and before it had any information about it. The infringement was also terminated before the Commission was informed of its existence, and Interbrew cooperated fully and without interruption throughout the investigation. However, Interbrew is not eligible for a substantial reduction of the fine, since it took the initiative to hold the discussions on private-label beer.
(357) Interbrew is eligible, however, for a significant reduction of the fine in accordance with section D. The Commission will take account of the fact that Interbrew brought the existence of the concerted practice to light when the Commission was still completely unaware of the matter and cooperated fully and without interruption throughout the investigation. In addition, Interbrew has not substantially contested the facts on which the Commission has based the allegation of infringement. The Commission therefore considers that a reduction in the fine for Interbrew of 50 % is appropriate.
(358) Alken-Maes has not substantially contested the facts on which the Commission based the allegation of a private-label cartel. However, its cooperation with the Commission regarding this infringement went no further than simply answering the Commission's official request for information, dated 22 March 2000, under Article 11(1) of Regulation No 17.
(359) The Commission therefore considers that in Alken-Maes's case a reduction of 10 % in the fine is appropriate in accordance with the second indent of section D.2. of the notice.
(360) Haacht has not substantially contested the facts on which the Commission has based the allegation of a private-label cartel. However, the information which it supplied to the Commission goes no further than its reply to the Commission's official request for information, dated 22 March 2000, under Article 11(1) of Regulation No 17.
(361) Haacht is therefore eligible for a reduction of 10 % in the fine in accordance with the second indent of section D.2 of the notice.
(362) In its reply to the statement of objections, Martens disputed the existence of the infringement as described by the Commission in that statement. In addition, the information supplied by Martens before the statement of objections was sent went no further than the undertaking's reply to the Commission's official request for information, dated 22 March 2000, under Article 11(1) of Regulation No 17.
(363) The documents which Martens supplied to the Commission after the statement of objections was sent either serve to underpin its own defence or point to the possible existence of a separate infringement of the competition rules. Neither circumstance, however, merits a reduction of the fine which is being imposed on Martens for taking part in the private-label cartel.
(364) During the proceedings, however, Martens did cooperate in a manner that speeded up the proceedings. This cooperation warrants a reduction of 10 % in the fine in accordance with section D of the notice.
9.2.2.8. Conclusions concerning the amount of the fines
(365) A fine of EUR 812000 should be imposed on Interbrew for taking part in the private-label cartel.
(366) A fine of EUR 585000 should be imposed on Alken-Maes for taking part in the private-label cartel.
(367) A fine of EUR 270000 should be imposed on Haacht for taking part in the private-label cartel.
(368) A fine of EUR 270000 should be imposed on Martens for taking part in the private-label cartel,
HAS ADOPTED THIS DECISION:
Article 1
Interbrew NV, Brouwerijen Alken-Maes NV and Groupe Danone SA have infringed Article 81(1) of the EC Treaty by taking part in a complex set of agreements and/or concerted practices relating to a general non-aggression pact, prices and promotions in the off-trade, customer sharing in the on-trade (both the "traditional" sector and national customers), the restriction of investment and advertising in the on-trade, a new pricing structure for the on-trade and the off-trade, and the exchange of information about sales in both the on-trade and the off-trade during the period from 28 January 1993 to 28 January 1998.
Article 2
The following fines are hereby imposed on Interbrew NV and Groupe Danone SA in respect of the infringements found in Article 1:
a) on Interbrew NV: a fine of EUR 45,675 million;
b) on Groupe Danone SA: a fine of EUR 44,043 million.
Article 3
Interbrew NV, Brouwerijen Alken-Maes NV, NV Brouwerij Haacht and NV Brouwerij Martens have infringed Article 81(1) of the EC Treaty by taking part in a concerted practice concerning prices, customer sharing and the exchange of information with regard to private-label beer in Belgium during the period from 9 October 1997 to 7 July 1998.
Article 4
The following fines are hereby imposed on the undertakings referred to in Article 3 in respect of the infringements found therein:
(a) on Interbrew NV: a fine of EUR 812000;
(b) on Brouwerijen Alken-Maes NV: a fine of EUR 585000;
(c) on NV Brouwerij Haacht: a fine of EUR 270000;
(d) on NV Brouwerij Martens: a fine of EUR 270000.
Article 5
Within three months of the date of notification of this Decision, the fines shall be paid by the undertakings referred to in Articles 2 and 4 into the following Commission bank account:
Account No 642-0029000-95 (IBAN Code BE76 6420 0290 0095; SWIFT Code BBVABEBB), of the European Commission at Banco Bilbao Vizcaya Argentaria (BBVA), Kunstlaan 43 Avenue des Arts, B-1040 Brussels.
After the expiry of the deadline referred to in the first subparagraph, interest shall be automatically payable at the interest rate applied by the European Central Bank for its main refinancing operations on the first day of the month in which this Decision is adopted, plus 3,5 percentage points.
Article 6
This Decision is addressed to:
(a) Interbrew NV, Vaartstraat 94, B-3000 Leuven;
(b) Groupe Danone SA, 7 rue de Téhéran, F-75008 Paris;
(c) Alken-Maes NV, Waarloosveld 10, B-2550 Waarloos;
(d) NV Brouwerij Haacht, Provinciesteenweg 28, B-3190 Boortmeerbeek;
(e) NV Brouwerij Martens, Reppelerweg 1, B-3950 Bocholt;
This Decision shall be enforceable pursuant to Article 256 of the EC Treaty.
Done at Brussels, 5 December 2001.