Judgment — ECLI:EU:T:2003:281
Date: 2003-10-23
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: Statement of reasons;Definition of abuse;Examples of abuse;Division of powers between the Commission and the authorities of the Member States;Restriction of competition;Conditions for exemption;Principle of the protection of legitimate expectations;Definition;Right to property;Criteria for establishing the existence of a dominant position;Principle of proportionality;General;Principle of subsidiarity
Procedure: Action for annulment - unfounded
Origin: Ireland

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Adverse effect on 
competition — Distribution agreements containing an exclusivity clause — Criteria 
for assessment — Accessibility of the market — Agreements whose cumulative effect 
is to partition the market — Specific economic context of the agreements taken into 
account — Distribution agreements for ice cream for immediate consumption under 
which the manufacturer supplies a freezer cabinet exclusively for storage of its products 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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SUMMARY — CASE T-65/98 
2. Competition — Agreements, decisions and concerted practices — Prohibition — No 
rule of reason in Community competition law 
(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC)) 
3. Competition — Agreements, decisions and concerted practices — Prohibition — 
Exemption — Conditions — Improvement in the production or distribution of 
goods — Appraisal by reference to the public interest, not the interests of the parties 
to the agreement 
(EC Treaty, Art. 85(3) (now Art. 81(3) EC)) 
4. Competition — Dominant position — Characterised by the holding of extremely 
large market shares 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
5. Competition — Dominant position — Meaning 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
6. Competition — Dominant position — Abuse — Meaning — Objective concept 
referring to conduct likely to influence the structure of the market and with the effect 
of hindering the maintenance or development of competition — Obligations on 
dominant undertakings — Exercise of competition only on the merits 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
7. Competition — Dominant position — Abuse — Undertaking in a dominant position 
binding retailers by distribution agreements comtaining an exclusivity clause — 
Distribution system constituting an abuse 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
8. Community law — Principles — Fundamental rights — Right to property — 
Restrictions — Permissibility — Conditions — Restrictions imposed pursuant to 
the competition rules 
(EC Treaty, Art. 3(g) (now, after amendment, Art. 3(1)(g) EC) and Arts 85, 86 and 222 
(now Arts 81 EC, 82 EC and 295 EC)) 
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VAN DEN BERGH FOODS v COMMISSION 
9. Acts of the institutions — Statement of reasons — Obligation — Scope — Taking 
the context into account 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
10. Community law — Principles — Protection of legitimate expectations — Con-
ditiofis — Notice under Article 19(3) of Regulation No 17 — Legitimate expectation 
of the future grant of an exemption — None 
(Council Regulation No 17, Art. 19(3)) 
11. Competition — Community rules — Application by the national courts — Proceed­
ings before national courts concerning the same case or a case similar to that concerned 
by the administrative procedure before the Commission — Commission decision 
finding an infringement of the Community rules — Breach of the principles of 
subsidiarity, sincere cooperation and legal certainty — None 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
12.Community law — Principles — Proportionality — Equal treatment — Scope — 
Decision finding a network of agreements to be incompatible with the competition 
rules and declaring the exclusivity clause in them to be invalid — Appraisal of 
anti-competitive effects of the network as a whole — Infringement — None 
1. In order to determine whether an 
undertaking's distribution agreements 
fall within the prohibition contained in 
Article 85(1) of the Treaty (now 
Article 81(1) EC), it is necessary to 
consider whether all the similar agree­
ments entered into in the relevant 
market and the other features of the 
economic and legal context of the 
agreements show that those agreements 
cumulatively have the effect of denying 
access to that market to new competi­
tors. If, on examination, that is found 
not to be the case, the individual 
agreements making up the bundle of 
agreements cannot impair competition 
within the meaning of Article 85(1) of 
the Treaty. If, on the other hand, such 
examination reveals that it is difficult 
to gain access to the market, it is then 
necessary to assess the extent to which 
those agreements contribute to the 
cumulative effect produced, on the 
basis that only those agreements which 
make a significant contribution to any 
partitioning of the market are pro­
hibited. 
It follows that the contractual restric­
tions placed on retailers by those dis­
tribution agreements must be examined 
not just in a purely formal manner 
from the legal point of view, but also 
by taking into account the specific 
economic context in which the agree­
ments in question operate, including 
the particular features of the relevant 
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SUMMARY — CASE T-65/98 
market, which may, in practice, rein­
force those restrictions and thus distort 
competition on that market contrary to 
Article 85(1) of the Treaty. 
With regard to a collection of distribu­
tion agreements entered into by a 
manufacturer of ice-cream products 
sold as single-wrapped ice creams for 
immediate consumption, under which 
the manufacturer supplies to the 
retailer freezer cabinets, in which it 
retains ownership, and which are sup­
plied free of charge or at a nominal rent 
and maintained at its cost, provided 
that they are used exclusively for its ice 
creams, that contractual restriction 
must be examined in the economic 
context in which those agreements 
operate. Therefore, when assessing 
those agreements in the light of the 
prohibition in Article 85(1) of the 
Treaty, it is permissible to take into 
consideration the effective dependence 
of retailers which results from the 
presence in the sales outlets of freezer 
cabinets supplied by the manufacturer, 
its dominant position on the relevant 
market, the popularity of its product 
range, the constraints associated with 
the lack of space characterising typical 
sales outlets, the disadvantages and 
risks associated with stocking a second 
range of ice cream, they all being 
features that form part of the economic 
context of those agreements. 
(see paras 2, 83-84, 91) 
2. The existence of the rule of reason in 
Community competition law is not 
accepted since an interpretation of 
Article 85(1) of the Treaty (now 
Article 81(1) EC) that accepts that 
agreements inevitably involving some 
form of restriction of conduct do not 
necessarily give rise to a restriction of 
competition, is difficult to reconcile 
with the structure of the rules pre­
scribed by Article 85. 
Article 85 of the Treaty expressly 
provides, in its third paragraph, for 
the exemption of agreements that 
restrict competition where they satisfy 
a number of conditions, in particular 
where they are indispensable to the 
attainment of certain objectives and do 
not afford undertakings the possibility 
of eliminating competition in respect of 
a substantial part of the products in 
question. It is only within the specific 
framework of that provision that the 
pro and anti-competitive aspects of a 
restriction may be weighed. Con­
sequently, Article 85(3) of the Treaty 
would lose much of its effectiveness if 
such an examination had already to be 
carried out under Article 85(1) of the 
Treaty. 
(see paras 106-107) 
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VAN DEN BERGH FOODS v COMMISSION 
3. The improvement of the production or 
d i s t r ibu t ion of goods , which 
Article 85(3) of the Treaty (now 
Article 81(3) EC) lays down as the first 
of the four conditions that must all be 
satisfied for an exemption to be 
granted in respect of an agreement 
between undertakings which does not 
observe the prohibitions laid down in 
Article 85(1), cannot be identified with 
any advantage which the parties obtain 
from the agreement in their production 
or distribution activities. The improve­
ment must in particular display 
appreciable objective advantages of 
such a character as to compensate for 
the disadvantages which they cause in 
the field of competition. 
Consequently, distribution agreements 
which by providing advantages to the 
parties to them in terms of efficiency of 
planning, organisation and distribution 
strengthen a manufacturer which 
already has a strong position in the 
market cannot be exempted by the 
Commission. Such agreements lead 
not to more but to less competition 
because they constitute a major barrier 
to entry into the market, as well as to 
expansion within the market by its 
existing competitors. 
(see paras 139-140) 
4. Very large market shares are in them­
selves, and save in exceptional circum­
stances, evidence of the existence of a 
dominant position. An undertaking 
which has a very large market share 
and holds it for some time, by means of 
the volume of production and the scale 
of the supply which it stands for — 
without holders of much smaller mar­
ket shares being able to meet rapidly 
the demand from those who would like 
to break away from the undertaking 
which has the largest market share — 
is by virtue of that share in a position 
of strength which makes it an unavoid­
able trading partner and which, 
because of this alone, secures for it, at 
the very least during relatively long 
periods, that freedom of action which 
is the special feature of a dominant 
position. 
(see para. 154) 
5. A dominant position is a position of 
economic strength which enables the 
undertaking to prevent effective com­
petition being maintained on the rel­
evant market by giving it the power to 
behave to an appreciable extent inde­
pendently of its competitors, customers 
and ultimately of its consumers. 
(see para. 154) 
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SUMMARY — CASE T-65/98 
6. 'Abuse' is an objective concept refer­
ring to the behaviour of an undertaking 
in a dominant position which is such as 
to influence the structure of a market 
where, as a result of the very presence 
of the undertaking in question, the 
degree of competition is already 
weakened and which, through recourse 
to methods different from those gov­
erning normal competition in products 
or services on the basis of the trans­
actions of commercial operators, has 
the effect of hindering the maintenance 
of the degree of competition still exist­
ing in the market or the growth of that 
competition. It follows that Article 86 
of the Treaty (now Article 82 EC) 
prohibits a dominant undertaking from 
eliminating a competitor and thereby 
strengthening its position by having 
recourse to means other than those 
within the scope of competition on the 
merits. The prohibition is also justified 
by the consideration that harm should 
not be caused to consumers. 
Therefore, whilst the finding that a 
dominant position exists does not in 
itself imply any reproach against the 
undertaking concerned, that undertak­
ing has a special responsibility, irre­
spective of the causes of that position, 
not to allow its conduct to impair 
genuine undistorted competition on 
the common market. 
(see paras 157-158) 
7. The fact that a manufacturing under­
taking in a dominant position on a 
market ties de facto 40% of outlets in 
the relevant market by distribution 
agreements containing an exclusivity 
clause which in reality creates outlet 
exclusivity constitutes an abuse of a 
dominant position within the meaning 
of Article 86 of the Treaty (now 
Article 82 EC). The exclusivity clause 
has the effect of preventing the retailers 
concerned from selling other brands of 
the same product or of reducing the 
opportunity for them to do so, even 
though there is a demand for such 
brands, and of preventing competing 
manufacturers from gaining access to 
the relevant market. 
(see para. 160) 
8. Although the right to property forms 
part of the general principles of Com­
munity law, it is not an absolute right 
but must be viewed in relation to its 
social function. Consequently, its exer­
cise may be restricted, provided that 
those restrictions in fact correspond to 
objectives of general interest pursued 
by the Community and do not con­
stitute a disproportionate and intoler­
able interference, impairing the very 
substance of the rights guaranteed. 
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VAN DEN BERGH FOODS v COMMISSION 
As Article 3(g) of the EC Treaty (now, 
after amendment, Article 3(1)(g) EC) 
provides that in order to achieve the 
aims of the Community, its activities 
are to include a system ensuring that 
competition in the internal market is 
not distorted and the application of 
Articles 85 and 86 of the Treaty (now 
Articles 81 EC and 82 EC) therefore 
constitutes one of the aspects of public 
interest in the Community, restrictions 
may be applied, under those articles, 
on the exercise of the right to property, 
provided that they are not dispropor­
tionate and do not affect the substance 
of that right. 
A manufacturer of ice creams intended 
for immediate consumption which 
holds a dominant position may there­
fore be prohibited from making the 
provision of freezer cabinets to retailers 
subject to an exclusivity clause pro­
hibiting the retailers from using them 
to store other manufacturers' products. 
(see paras 170-171) 
9. The extent of the obligation to state 
reasons depends on the nature of the 
measure in question and on the context 
in which it was adopted. The statement 
of reasons must disclose in a clear and 
unequivocal fashion the reasoning of 
the institution, in such a way as to give 
the persons concerned sufficient infor­
mation to enable them to ascertain 
whether the decision is well founded or 
vitiated by a defect which may permit 
its legality to be contested, and to 
enable the Community judicature to 
carry out its review of the legality of 
the measure. However, it is not necess­
ary for the reasoning to specify all the 
relevant facts and points of law, since 
the question whether the statement of 
reasons meets the requirements of 
Article 190 of the Treaty (now 
Article 253 EC) must be assessed with 
regard not only to its wording but also 
to its context and to all the legal rules 
governing the matter in question. 
(see para. 176) 
10. The right to rely on the principle of the 
protection of legitimate expectations, 
which is one of the fundamental prin­
ciples of the Community, extends to 
any individual who is in a situation in 
which it is apparent that the Commu­
nity administration has led him to 
entertain reasonable expectations by 
giving him precise assurances. 
This is not the case where the Com­
mission, in a notice under Article 19(3) 
of Regulation No 17, proposes — on a 
preliminary basis — to adopt a 
favourable attitude to certain agree­
ments between undertakings which 
have previously given rise to a state­
ment of objections, in the light of their 
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SUMMARY — CASE T-65/98 
revision by the parties, and invites all 
the interested third parties to submit 
their observations to it within a spec­
ified time. Such a notice merely repre­
sents a preliminary position of the 
Commission, which is subject to 
change, in the light particularly of the 
observations of third parties. Con­
sequently, the undertakings concerned 
cannot have had a legitimate expec­
tation that the Commission would 
grant it an exemption under 
Article 85(3) of the Treaty (now 
Article 81(3) EC) in accordance with 
that notice, solely on the basis of 
publication of the notice. 
If the Commission finds that the 
changes made to the agreements have 
not had the expected results it may 
initiate a new procedure and raise new 
objections to those agreements in a 
new statement of objections. 
Moreover, even if the Commission 
grants an exemption, it has the power, 
and even the obligation, under 
Article 8(3) of Regulation No 17, to 
revoke or amend that exemption if it 
finds that the exempted agreements 
have certain effects that are incom­
patible with the conditions laid down 
in Article 85(3) of the Treaty. 
(see paras 192, 194-195) 
11. Although Articles 85(1) and 86 of the 
Treaty (now Articles 81(1) EC and 82 
EC) produce direct effects in relations 
between individuals and create direct 
rights in respect of the individuals 
concerned which the national courts 
must safeguard, that does not mean 
that the Commission has no right to 
adopt a position in a case, even though 
an identical or similar case is pending 
before one or more national courts, 
provided in particular that trade 
between Member States is capable of 
being affected. 
The Commission has exclusive com­
petence to adopt decisions in imple­
mentation of Article 85(3) of the 
Treaty pursuant to Article 9(1) of 
Regulation No 17 and is also entitled 
to adopt, at any time, individual 
decisions applying Articles 85 and 86 
of the Treaty, even though it shares 
competence to apply Articles 85(1) and 
86 of the Treaty with the national 
courts, and even where an agreement 
or practice has already been the subject 
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VAN DEN BERGH FOODS v COMMISSION 
of a decision by a national court and 
the decision contemplated by the Com­
mission conflicts with the national 
court's decision. 
It follows that there is no infringement 
of the principles of subsidiarity, sincere 
cooperation and legal certainty where 
the Commission, after receiving a 
request for an exemption of an agree­
ment and complaints against that 
agreement, adopts a decision applying 
the Community competition rules even 
though various courts and competition 
authorities are seised of parallel pro­
ceedings raising questions similar to 
those dealt with in that decision. More­
over, in those circumstances, the adop­
tion of a decision by the Commission is 
appropriate in order to ensure that the 
Community competition rules are 
applied coherently to the various forms 
of agreements practised throughout the 
Community. 
12. The principle of proportionality 
requires that the acts of the Commu­
nity institutions do not exceed the 
limits that are appropriate and necess­
ary in order to achieve the aim pur­
sued, whilst the principle of non-dis­
crimination prohibits the different 
treatment of identical situations or the 
treatment of different situations identi­
cally. 
A Commission decision applying 
Articles 85 and 86 of the Treaty (now 
Articles 81 EC and 82 EC) and pro­
hibiting, with immediate effect, an 
undertaking in a dominant position 
on the market for ice creams intended 
for immediate consumption from con­
tinuing a practice whereby it binds 
retailers by agreements making freezer 
cabinets available that may be used 
only for the sale of its own products 
does not infringe those principles 
where the network of those agreements 
significantly contributes, in conjunc­
tion with all the similar contracts 
found on the relevant market, includ­
ing those of other suppliers, to denying 
access to the market to new national 
and foreign competitors. 
(see paras 197-199) (see paras 201, 203-206) 
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