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Final report of the Hearing Officer in case COMP/39.116 — Coca-Cola

(pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2005/C 239/09)

(Text with EEA relevance)

The draft decision concerns the supply of carbonated soft drinks in the EC, Iceland and Norway through the distribution channels for consumption at home and consumption on the premises. It is addressed to The Coca-Cola Company (‘TCCC’) and its three anchor bottlers, Bottling Holdings (Luxembourg) sarl, Coca-Cola Erfrischungsgetränke AG and Coca-Cola Hellenic Bottling Company SA (hereinafter ‘the Parties’).

The Commission received complaints in 1996, 1999 and 2001 under Article 3 of Council Regulation No 17 of 6 February 1962, which alleged an abuse of a dominant position by TCCC and its bottlers. The Commission undertook inspections pursuant to Article 14(3) of Regulation No 17 on the Parties' premises located in Austria, Belgium, Denmark, Germany and the United Kingdom in 1999 and 2000.

On 29 September 2004 the Commission opened proceedings with a view to adopting a decision under Chapter III of Regulation (EC) No 1/2003.

In the preliminary assessment issued on 15 October 2004 pursuant to Article 9(1) of Regulation (EC) No 1/2003, the Commission raised competition concerns against certain business practices of TCCC and its bottlers in the supply of carbonated soft drinks relating to exclusive supply, growth and target rebates and leveraging of market power between various product categories.

On 19 October 2004 the Parties submitted commitments to the Commission in response to its preliminary assessment.

On 26 November 2004 a notice according to Article 27(4) of Regulation (EC) No 1/2003 was published in the Official Journal of the European Union, which, summarising the case and the commitments submitted by the Parties, invited interested third parties to give their observations on the commitments within one month following the publication date (‘the market test’) (1). The notice informed the public of the Commission's perceived competition concerns, the corresponding remedies, and invited interested parties to submit comments. In response to the notice, the Commission received 33 observations from interested third parties, of which 19 from on-premise and take-home operators and 14 from beverage suppliers. The observations received were overall positive, as they confirmed the effectiveness of the commitments in addressing the Commission's concerns. They did not make the Commission reconsider its concerns as stated in the preliminary assessment and did not give rise to identification of new concerns.

On 21 January 2005 the Commission informed the Parties of the observations received from the interested third parties during the market test. On 25 February 2005 the Parties submitted an amended commitment proposal.

The Commission has now come to the conclusion that, in view of the undertakings proposed by the Parties in response to the preliminary assessment and as later amended to take account of the relevant observations by interested third parties and without prejudice to Article 9(2) of Regulation (EC) No 1/2003, there are no longer grounds for action.

No queries were raised before the Hearing Officer by the Parties or other companies as to the market test. No requests for additional information were made. The Parties confirmed that the Commission Services provided them with sufficient facts to develop commitments that address the matters raised in the preliminary assessment.

In the light of the above, the case does not call for any particular comments as regards the right to be heard.

Brussels, 26 May 2005.

Serge DURANDE

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(1)OJ C 289, 26.11.2004, p. 10.

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