Judgment — ECLI:EU:T:2005:298
Date: 2005-07-27
Language of the case: French
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: Infringement committed "deliberately or through negligence";Determining the amount of the fine;Restriction of competition;Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Luxembourg

summary of recitals 48 to 73 of the Decision in paragraphs 30 to 40 above. 108 Furthermore, the contextual factors that, according to the applicants, the Commission did not take sufficiently into account in assessing the object of the Agreement are the vitality of the sector concerned in terms of market shares, the sector’s unique openness to imports, and the existence of a large number of outlets not tied to the parties. However, these contextual factors relate not to the object of the Agreement but to its effects. It is settled case-law that the Commission is not required to examine the effects of an agreement that is anti-competitive by object (see, to that effect, Volkswagen v Commission, paragraph 231). That is not disputed by the applicants, who recognise that it is unnecessary to demonstrate the effects of an agreement that is restrictive by object. 109 It should be added that the applicants’ allegations that the Commission did not take sufficient account of the contextual elements are not well founded. In paragraphs 23 to 25 of the judgment in IAZ and Others v Commission, on which the applicants seek to rely, ‘the content [of the agreement at issue in that case], its origin and the circumstances in which it was implemented’ had been taken into account. These are precisely the kind of elements that the Commission took into account to reach the conclusion that the Agreement was restrictive by object. In that regard, reference is again made to the abovementioned summary of recitals 48 to 73 of the Decision. 110 It follows that the first part of the first plea must be rejected. Second part of the first plea, alleging that the Commission wrongly concluded that the Agreement applied where no ‘beer tie’ existed The contested decision 111 In the Decision the Commission considered that, according to the minutes of the meeting of the FBL on 7 October 1986, as amended by those of the meeting of the FBL on 2 December 1986, the parties agreed to interpret the term ‘beer tie’ more widely than in Article 2 of the Agreement. According to the Decision, this interpretation was confirmed by a letter dated 23 October 1991 from Wiltz to the FBL (recital 9). Arguments of the parties 112 The applicants maintain that the Commission wrongly concluded that the Agreement extended to cases where no ‘beer tie’ had been duly concluded and was in force. 113 According to the applicants, although an agreement may derive from a document other than a formal text, it is still necessary to verify whether it is the ‘faithful expression of the joint intention of the parties’ (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 110 to 114, and Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 86). They assert, however, that no such intention existed in the present case. They observe, first, that the minutes of the meeting of the FBL on 7 October 1986, referred to in recital 9 of the Decision, state that ‘the three documents held over … [were] approved and [would be] signed at the next meeting’, to which the minutes of the meeting of the FBL on 2 December 1986, also referred to in recital 9 of the Decision, attest when they state that ‘the [parties] proceed[ed] to sign [those documents]’. According to the applicants, such signature is thus a formality without which no joint intention of the parties can be identified. They note that neither of the two minutes mentioned above record such a signature as regards the interpretation of the Agreement as it emerges from the two minutes, whereas that interpretation cannot be dissociated from the three documents referred to above. Furthermore, they observe that it is clear from the minutes of the meeting of the FBL on 2 December 1986 that the documents mentioned in paragraph 2 of the minutes of the preceding meeting of the FBL had been amended. That document was therefore not approved after either the first or the second meeting. Lastly, the applicants note that the wording of the letter of 23 October 1991 from Wiltz to the FBL, referred to in recital 9 of the Decision, is headed ‘Proposal’. They add that it contains the two interpretative indents featuring in the minutes referred to above, with shortened and improved wordings. According to the applicants, Wiltz would have had no interest in making this proposal if the minutes in question already reflected the disputed broader interpretation. 114 With regard to the alleged admission by Wiltz of the disputed broader interpretation, the applicants reply that Wiltz used the conditional mood in the declaration concerned. With regard to the alleged admission of that broader interpretation by Brasserie Nationale, the latter replies that in the declaration concerned it merely indicated the origin of the proposal for such an extension, and that the expressions ‘it agreed to sign’ and ‘[i]t did not bother [it] to sign’ only indicated its readiness to sign in the future. 115 Brasserie Nationale also states, with reference to correspondence in the file, that no dispute between the parties had ever arisen where there was no signed contract. 116 Lastly, Brasserie Nationale claims that the Commission itself recognised that the Agreement did not apply to cases where there was no ‘beer tie’, as recital 92 of the Decision states that ‘the scope of the infringement [was] limited … only to those outlets tied to the parties by an exclusive purchasing clause’. 117 The Commission contends that this part of the first plea is not well founded. Findings of the Court 118 It is established case-law that, for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (see, to that effect, ACF Chemiefarma v Commission, paragraph 112, Van Landewyck and Others v Commission, paragraph 86, Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256, and Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, paragraph 67). As regards the form in which that common intention is expressed, it is sufficient for a stipulation to be the expression of the parties’ intention to behave on the market in accordance with its terms (see, to that effect, ACF Chemiefarma v Commission, paragraph 112, Van Landewyck and Others v Commission, paragraph 86, and Bayer v Commission, paragraph 68). 119 It follows that the concept of an agreement within the meaning of Article 81(1) EC, as interpreted by the case-law, centres round the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention (Bayer v Commission, paragraph 69). 120 In the present case, the minutes of the meeting of the FBL on 7 October 1986, referred to above, state as follows: ‘2. Beer tie The three documents held over … are approved and will be signed at the next meeting. In addition, it is agreed that the following will be accepted and treated in the same way as a “beer tie”: – the transaction consisting of taking out a lease and contributing financially to fitting out of a café, without a “beer tie” being expressly mentioned, – where a brewer takes over a drinks outlet licence and invests funds, without a “beer tie” being expressly mentioned. These two interpretations are an integral part of the existing provisions relating to this matter.’ 121 The minutes of the meeting of the FBL of 2 December 1986, mentioned above, state as follows (the passages are reproduced as in the original): ‘1. The minutes of the meeting of 7 October 1986 call for the following amendments: … Point 2) – 1st indent – “the transaction consisting of taking out a lease and contributing financially to fitting out of a café, without a ‘beer tie’ being expressly mentioned, e.g. brewer X leases a building and contributes to the cost of its refurbishment for that purpose but does not, or does not manage to, enter into an obligation with the owner.” 2nd indent will read as follows: – the taking over of a drinks outlet licence by a brewer, without a “beer tie” being expressly mentioned. 2. The brewers proceed to sign [the three documents mentioned in point 2 of the minutes of the meeting of 7 October 1986]. All the brewers have received a copy of these signed documents, the originals of which will be deposited with the [FBL]. These documents are confidential.’ 122 The letter of 23 October 1991 from Wiltz to the FBL, mentioned above, reads as follows: ‘Proposal: In respect of Article 2 of the Agreement, the brewers agree to accept and to treat in the same way as a “beer tie”: – the transaction consisting of taking out a lease, – the provision by a brewer, on whatever basis, of a drinks outlet licence.’ 123 It must therefore be examined whether, in the light of the factors adduced by the applicants, the Commission established to the requisite legal standard that a concurrence of wills existed among the parties on the application of the Agreement even where no ‘beer tie’ had been duly concluded and was in force. 124 The minutes of the meeting of the FBL on 7 October 1986 explicitly state that the extension of the scope of the Agreement mentioned therein had been ‘agreed’ and ‘[was] an integral part of the existing provisions relating to this matter.’ Neither these minutes nor those of the meeting of the FBL on 2 December 1986 provided for that agreement to be formalised in any manner. To that extent, the fact that the first minutes also provided that certain documents to which they referred ‘[were] approved and [would] be signed’ is of no relevance. Similarly, the fact that the second minutes contain (relatively minor) amendments to the text contained in the first minutes does not invalidate the agreement reached between the parties precisely with regard to the text so amended. 125 Furthermore, as recital 29 of the Decision states, both Brasserie Nationale and Wiltz admitted that the Agreement also applied to certain brewer-publican relations where there was no supply contract or ‘beer tie’ at all. 126 Indeed, in its reply to the questions put by the Commission after its hearing, Brasserie Nationale stated, with regard to the situation in which a brewer takes out a lease and provides financing but there is no contract containing a ‘beer tie’: ‘In this case, the 1986 documents [that is, the two sets of minutes referred to above] say, it must also be considered that there is a “beer tie” within the meaning of the Agreement. That clause is, it has to be admitted, surprising a priori, since no brewer invests without a contract … That having been said, this implausible clause has never … been implemented. In reality, what was referred to was the absurd hypothesis imagined by … The working hypothesis of that person was obviously absurd, but as [Brasserie Nationale] had none of the intentions ascribed to it, it agreed to sign the text in question. … It did not bother [Brasserie Nationale] to sign, because it had no intention of acting in accordance with the hypothesis referred to in the clause in question …’. 127 Wiltz, for its part, stated as follows in its reply to the statement of objections: ‘The [Agreement] could at most be considered in this way on the basis of the interpretation of the “beer tie” terms agreed between the parties at the [meetings of the FBL] on 7 October and 2 December 1986, but there too the sole and legitimate aim was to be sure of getting the necessary information to prevent legal uncertainty if heavy investment was involved.’ 128 In that regard, the applicants’ argument that in its statement cited in the preceding paragraph Wiltz used the conditional mood must be rejected. In that statement Wiltz explicitly referred to the ‘interpretation of the “beer tie” terms agreed between the parties’. 129 Brasserie Nationale further maintains that, in its statement cited in paragraph 126 above, it merely indicated the origin of the proposal to extend the scope of the Agreement to cases in which there was no ‘beer tie’ and that the expressions ‘it agreed to sign’ and ‘[i]t did not bother [it] to sign’ merely signalled its readiness to sign the proposal in the future. 130 Those arguments must also be rejected. In the circumstances of the case, the statement cited above cannot invalidate the finding that Brasserie Nationale consented to the extension of the scope of the Agreement following the meetings of 7 October and 2 December 1986. It is of little relevance who originated the proposal to extend the scope of the Agreement, since a concurrence of wills can be established (see, to that effect, Cases 19/77 Miller v Commission [1978] ECR 131, paragraph 7, and T‑77/92 Parker Pen v Commission [1994] ECR II‑549, paragraph 37). 131 In any event, if Brasserie Nationale did not accept the extension of the scope of the Agreement, it was up to that undertaking to distance itself from the new interpretation of ‘beer ties’ (see, to that effect, Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 1353 and the case-law cited). However, it is not disputed that it did not do so. 132 Furthermore, if the extension of the scope of the Agreement had not been decided among the parties, logically Brasserie Nationale would not have relied, in its reply to the Commission, solely on the fact that the extension had not been applied. 133 As to the argument based on the letter from Wiltz, referred to above, it must be considered that Wiltz may well have made the proposal mentioned in that letter not for the reason put forward by the applicants but out of a desire to amend the text resulting from the two minutes referred to above. Furthermore, contrary to the applicants’ assertions, this proposal from Wiltz contains more than stylistic improvements. For example, according to the proposal, ‘the transaction consisting of taking out a lease’ is to be treated in the same way as a ‘beer tie’, whereas the minutes of the meeting of the FBL on 2 December 1986 provided that ‘the transaction consisting of taking out a lease and contributing financially to fitting out of a café’ is to be treated in the same way as such a tie. That amendment cannot be regarded as purely stylistic. 134 Lastly, with regard to the supposed recognition by the Commission that the Agreement did not apply where there was no ‘beer tie’, it must be noted that, although the phraseology used in recital 92 of the Decision – according to which ‘the scope of the infringement is limited … only to those outlets tied to the parties by an exclusive purchasing clause’ – is perhaps infelicitous, a simple combined reading of recitals 9 and 48 to 63, and especially of the reference made in recital 50 to recital 9, shows that the Commission was of the opinion that the Agreement also applied where there was no ‘beer tie’. Moreover, it should be recalled that in this part of the first plea the applicants dispute that opinion. They cannot therefore validly claim that the Commission was of a different opinion. 135 In the light of the foregoing, the applicants have not adduced sufficient evidence to call into question the Commission’s finding that a concurrence of wills existed among the parties on the application of the Agreement, even where there was no ‘beer tie’ duly concluded and in force. 136 The second part of the first plea must therefore be rejected. Fifth part of the first plea, alleging that the Agreement had no appreciable effect on competition The contested decision 137 The Decision states that the Agreement was liable to restrict competition appreciably in the Luxembourg on-trade. In that regard, it notes first that the parties limited the scope of the Agreement to the Luxembourg on-trade, which indicates that they considered their position in this sector to be significant enough, and the conditions of competition there to be sufficiently different from those in other sectors or in neighbouring countries, to ensure that the Agreement was effective. Second, it points out that, taking into account their own production and their distribution of imported beers, the parties controlled approximately 85% of beer sales in the sector concerned, and that more than half the drinks outlets in Luxembourg were tied to them by a ‘beer tie’ (recitals 74 to 76). Arguments of the parties 138 The applicants maintain that the Commission’s conclusion that there was an appreciable restriction on competition was incorrect and that the statement of reasons was inadequate. They observe that the Commission did not define the relevant market. They then claim that the limitation of the scope of the Agreement to the on-trade demonstrates nothing but merely corresponds to the extent of the problem identified by the parties, in view of which they were likely to cooperate. Moreover, according to the applicants, although the share of 85% of the volume of beer distributed by the parties may appear high, the proportion of 40 to 45% of outlets open to other brewers did not justify a finding that the restriction was appreciable. Furthermore, the fact that the restriction regarding foreign brewers was not implemented should lead to the conclusion that the restriction was not appreciable. 139 The Commission contends that this part of the first plea is not well founded. Findings of the Court – Alleged error of assessment 140 In this regard, it suffices to recall that undertakings which conclude an agreement whose purpose is to restrict competition cannot, in principle, avoid the application of Article 81(1) EC by claiming that their agreement should not have an appreciable effect on competition (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑0000, paragraphs 130 and 196). 141 As the object of the Agreement was to maintain the parties’ respective clienteles in the Luxembourg on-trade and to impede penetration of that sector by foreign brewers, its existence made sense only if its object was to restrict competition in this sector appreciably, that is to say in a manner commercially useful to them (see, by analogy, Mannesmannröhren-Werke v Commission, paragraph 131). – Alleged failure to state reasons 142 It is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63). 143 Having regard to the information referred to in recitals 74 to 76 of the Decision, Brasserie Nationale was fully able to put forward arguments that the Commission’s conclusion regarding the appreciable nature of the restriction on competition was unlawful. 144 Furthermore, with regard to the complaint about the failure to define the market in question, suffice it to say that there is an obligation on the Commission to define the relevant market in a decision applying Article 81 EC only where it is impossible, without such a definition, to determine whether the agreement, decision by an association of undertakings or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 206). Such a situation does not arise in the present case, as is clear in particular from the rejection of the third and fourth parts of this plea. 145 It follows that the fifth part of the first plea must be rejected. 146 As all the parts of the first plea have been rejected, the first plea must be rejected in its entirety, so that it is necessary to examine the second plea. 2. Second plea: infringement of Article 15(2) of Regulation No 17 and non‑compliance with the obligation to state reasons enshrined in Article 253 EC 147 The second plea is divided into three parts, claiming, first, that the infringement was not intentional; second, that an error of assessment was made with regard to the gravity and duration of the infringement; and, third, that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS (OJ 1998 C 9, p. 3, ‘the Guidelines’) with regard to mitigating circumstances were not applied. The plea in Case T‑49/02 also includes a fourth part, alleging failure to state reasons for the initial base amount used by the Commission in calculating the fines. First part of the second plea, claiming that the infringement was not committed intentionally The contested decision 148 The Decision states that an infringement of the Community competition rules is regarded as being committed intentionally if the parties are aware that the object or effect of the act in question is to restrict competition. It is not essential that they should also be aware that they are infringing a provision of the EC Treaty. As regards the provisions relating to foreign brewers, the Commission considered that the parties could not have been unaware of their restrictive object. Indeed, according to the Commission, they had not sought to justify those provisions. As to the restrictions of competition between the parties resulting from their mutual observance of ‘beer ties’, it was possible that when the Agreement was concluded, and up until March 1996, the parties were motivated by the legal uncertainty created by the Luxembourg case-law relating to undetermined prices or quantities. However, that justification had disappeared in March 1996 when that case-law was overturned. Consequently, the Commission concluded that the parties committed the infringement intentionally, even if the Luxembourg case-law may have created a doubt about the illegal nature of certain clauses during a particular period (recitals 89 and 90). Arguments of the parties 149 The applicants submit that the Commission was wrong to conclude that they had committed the infringement intentionally. 150 With regard to the restriction involving the maintenance of clienteles, the applicants allege, first, that the Commission itself recognises that Luxembourg case-law could create a doubt as to whether that restriction was an infringement. The applicants repeat the assertion that that justification should be accepted not until 1996 but until mid-1998, and add that, if the Commission’s reasoning in the Decision is followed, it was only in the last two years of the duration of the Agreement that an ‘intentional’ infringement could have been committed. Second, according to the applicants, in the Decision the Commission does not definitively dispute their contention that the sole object of the Agreement was to ensure that ‘beer ties’ were honoured. They assert that that object is lawful (Delimitis). 151 Moreover, the applicants claim that they are not of such size that their ignorance of the law cannot be accepted. They maintain that as recital 96 of the Decision classifies Brasserie de Luxembourg as a large undertaking, the contrary inference is that this description is not applicable to any of the other parties. Moreover, they were never aware of the restriction on trade between Member States. Brasserie Nationale adds, with regard to the latter point, that the Commission has not proved the contrary. 152 The applicants also claim that none of the parties sought to obstruct foreign brewers. Brasserie Nationale adds that none of the parties considered that the objective of preserving the possibility of domestic competition could be regarded as anti-competitive. The reservation expressed by Diekirch with regard to the lawfulness of the Agreement was merely a conventional formula used in contact letters during a dispute. 153 With regard to the statement of reasons in the Decision on the question of whether the applicants acted intentionally, Brasserie Nationale claims that the argument that, as far as the provisions relating to foreign brewers were concerned, ‘the parties could not have been unaware of their restrictive object’ is a circular argument and does not constitute proof, and that the argument that ‘the parties have not sought to justify these provisions’ is incorrect. According to Brasserie Nationale, these two accusations are not sufficient for the reasoning in the Decision to be accepted as meeting the requirements as to clarity and precision. Wiltz and Battin claim that the statement of reasons contained in recital 89 of the Decision does not constitute proof. In their view, Article 253 EC has therefore not been complied with. 154 The Commission contends that this part of the second plea is not well founded. Findings of the Court – Alleged error of assessment 155 It is settled case-law that for an infringement of the competition rules in the EC Treaty to be regarded as having been committed intentionally, it is not necessary that the undertaking was aware that it was restricting competition; it is sufficient that it could not have been unaware that the object of its conduct was the restriction of competition, and it is unimportant whether the undertaking was aware that it was infringing Article 81 EC (Miller v Commission, paragraph 18, and Case T‑143/89 Ferriere Nord v Commission [1995] ECR II‑917, paragraph 41 and the case-law cited). 156 As is clear from the rejection of the third and fourth parts of the first plea, the Commission could legitimately conclude that the object of the Agreement was to maintain the parties’ clienteles in the Luxembourg on-trade and to impede the penetration of that sector by foreign brewers. The Agreement therefore amounts, first, to a market-sharing arrangement and, second, to a partitioning of the common market. In those circumstances, the Commission could consider, without committing an error, that the applicants could not be unaware that the object of the Agreement was to restrict competition. 157 From that perspective, the applicants’ arguments that they are not of such size that their ignorance of the law cannot be accepted, that they were never aware that the Agreement restricted trade between Member States, that none of the parties sought to obstruct foreign brewers and that none of the parties considered that the objective of preserving the possibility of domestic competition could be regarded as anti-competitive are all necessarily irrelevant in the present case. 158 The applicants further contend that in the Decision the Commission itself recognised that Luxembourg case-law at that time could create a doubt as to whether the restriction concerning the maintenance of clienteles was an infringement. As the Commission states, even if that doubt were well founded, it has no relevance with respect to the intentional nature of the restriction of competition, precisely because it relates not to the object of the Agreement, which was to restrict competition, but, at most, to whether it was an infringement. As is clear from the case-law cited in paragraph 155 above, the concept of intent referred to in Article 15(2) of Regulation No 17 relates only to the restrictive object of the agreement concerned and not to whether it is an infringement of Article 81(1) EC. 159 Finally, as regards the argument that, as recital 96 of the Decision classifies Brasserie de Luxembourg as a large undertaking, the contrary inference is that this description does not apply to the other parties, it must be noted that, as the Commission points out, the size of Brasserie de Luxembourg was mentioned only to justify the use of the multiplier applied to the latter as a deterrent. That assessment of the size of the undertaking is therefore of no relevance for the examination of the intentional nature of the restriction of competition. – Alleged failure to state reasons 160 In the light of the requirements as to stating reasons referred to in Article 253 EC and recalled in paragraph 140 above, recitals 89 and 90 of the Decision disclose in a clear and unequivocal fashion the reasons why the Commission concluded that the restriction of competition was intentional. 161 It follows that the first part of the second plea must be rejected. Second part of the second plea, alleging an error of assessment as to the gravity and duration of the infringement The contested decision 162 With regard to the gravity of the infringement, the Decision states on the one hand that, as the object of the Agreement was to maintain the parties’ clienteles and to impede penetration of the market by foreign brewers, the infringement is one of the most serious that could be committed. On the other hand, it considers that the scope of the infringement is limited to the on-trade and only to those outlets tied to the parties by an exclusive purchasing clause, that the provisions concerning foreign brewers were not implemented, and that the Luxembourg beer market is the smallest in the Community. For all of these reasons, the infringement is finally classified as serious (recitals 92 and 93). 163 With regard to the duration of the infringement, the Decision notes in particular that it ceased on 16 February 2000, the date on which Interbrew informed the Commission that it had instructed its subsidiaries Mousel and Diekirch to stop implementing the Agreement (recital 86). From this it is concluded that, as the infringement lasted for more than 14 years (1985-2000), it is of long duration (recital 97). Arguments of the parties 164 The applicants maintain that the Commission wrongly assessed the gravity and duration of the infringement. 165 With regard to the gravity of the infringement, they claim that, under the Guidelines, minor infringements are defined as ‘trade restrictions … but with a limited market impact and affecting only a substantial but relatively limited part of the Community market’ and serious infringements are defined as horizontal or vertical restrictions of the same type, but ‘more rigorously applied, with a wider market impact, and with effects in extensive areas of the common market’. According to the applicants, the infringement at issue should have been classified as minor, in that recital 92 of the Decision states that the provisions affecting foreign brewers were not implemented, that the Agreement affected only the Luxembourg on-trade, and that the information exchanged was very limited. Brasserie Nationale repeats its assertion that the Agreement was exempt from notification. 166 With regard to the duration of the infringement, the applicants state that the provisions relating to foreign brewers were not implemented. 167 The Commission contends that this part of the second plea is not well founded. Findings of the Court – Gravity of the infringement 168 The Guidelines state, in particular, that in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. Infringements are thus put into three categories, distinguishing between minor infringements, serious infringements and very serious infringements (first and second paragraphs of Section 1.A). 169 It should be noted that the Guidelines do not prejudge the assessment of the fine by the Community judicature, which has unlimited jurisdiction in this respect under Article 17 of Regulation No 17. In addition, while the Commission may determine the amount of the fine in accordance with the method prescribed by the Guidelines, it must remain within the context of the penalties defined by Article 15 of Regulation No 17 (Case T‑368/00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II‑4491, paragraph 188). 170 It should be recalled that the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, without there being any binding or exhaustive list of the criteria which must be applied. In addition, consistent case-law shows that, in the context of Regulation No 17, the Commission has a wide margin of discretion in fixing the amount of fines in order to steer the conduct of undertakings towards compliance with the competition rules. The Court of First Instance is, however, under a duty to verify whether the amount of the fine imposed is proportionate in relation to the gravity and duration of the infringement, and to weigh the gravity of the infringement and the circumstances invoked by the applicant (Case T‑229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127, and General Motors Nederland and Opel Nederland v Commission, paragraph 189). 171 In the present case, the Commission followed a two-stage reasoning in the Decision, but without referring explicitly to the Guidelines. 172 With regard to the first stage of the reasoning, it should be recalled that, as stated in the context of the examination of the third and fourth parts of the first plea, the Agreement amounts to a market-sharing arrangement and, in addition, to a partitioning of the common market. 173 As regards the market-sharing arrangement, agreements of this type are among the examples of agreements explicitly declared to be incompatible with the common market in Article 81(1)(c) EC. They are categorised in the case-law as obvious restrictions of competition (Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 136). 174 As regards the partitioning of the common market, it should be recalled that such a patent infringement of competition law is, by its nature, particularly serious. It goes against the most fundamental aims of the Community and, in particular, the accomplishment of the single market (see, to that effect, Case T‑9/92 Peugeot v Commission [1993] ECR II‑493, paragraph 42, and General Motors Nederland and Opel Nederland v Commission, paragraph 191). 175 In these circumstances, the Commission was right to consider, in the first stage of its reasoning, that the Agreement constituted one of the most serious infringements of Article 81 EC. 176 With regard to the second stage of the reasoning, it is settled case-law that a geographical market of national dimension corresponds to a substantial part of the common market (Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 28, and Deutsche Bahn v Commission, paragraph 58). 177 As it is not disputed that the infringement at issue relates to the Luxembourg on-trade as a whole, it covers a substantial part of the common market. 178 Moreover, in the Guidelines the Commission indicates that very serious infringements are ‘generally … horizontal restrictions such as price cartels and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets’ (third indent of the second paragraph of Section 1.A). It follows from this indicative description that agreements or concerted practices involving in particular, as in the present case, the parcelling out of clienteles on the one hand and the partitioning of the common market on the other may warrant being classified as very serious solely on the basis of their nature, without it being necessary for such conduct to cover a particular geographical area or have a particular impact. That conclusion is corroborated by the fact that, while the indicative description of serious infringements mentions that ‘these will more often than not be horizontal or vertical restrictions … but more rigorously applied, with a wider market impact, and with effects in extensive areas of the common market’, that of very serious infringements does not mention any requirement as to the actual market impact or the effects produced in a particular geographical area. 179 It follows that the classification of the present infringement as serious rather than very serious, as stated in the Decision, is already less strict by comparison with the criteria generally applied for fixing the amount of fines in cases of agreements aimed at sharing the market and, furthermore, partitioning the common market (see, to that effect, Tate & Lyle and Others v Commission, confirmed by the judgment in Case C‑359/01 P British Sugar v Commission [2004] ECR I‑4933, paragraph 103). 180 Moreover, in the first indent of the second paragraph of Section 1.A of the Guidelines the Commission states that minor infringements ‘might be trade restrictions, usually of a vertical nature, but with a limited market impact and affecting only a substantial but relatively limited part of the Community market’. 181 A horizontal agreement covering the entire territory of a Member State and with the object both of dividing the market and of partitioning the common market cannot be classified as minor within the meaning of the Guidelines. 182 The fact that the second infringement identified was not implemented does not alter that finding. As recalled in paragraph 174, such a restriction is an infringement described in Article 81 EC and, more broadly, an infringement of the objectives of the Community. 183 For all of these reasons, it must be held that, by finally classifying the present infringement as serious, the Commission did not infringe the applicants’ rights under Community law. – Duration of the infringement 184 It suffices to state that, even if it were established as fact that the provisions of the Agreement relating to foreign brewers were not implemented, that fact is irrelevant. 185 Since the Commission was under no obligation to prove the effects of the agreement in question, as it had as its object the restriction of competition, it is irrelevant for calculating the duration of the infringement whether or not an aspect of the agreement at issue was implemented. To calculate the duration of an infringement the object of which is to restrict competition, it is necessary merely to determine the period during which the agreement existed, that is, the time between the date on which it was entered into and the date on which it was terminated (CMA CGM and Others v Commission, paragraph 280). 186 It follows from the foregoing that the second part of the second plea must be rejected. Third part of the second plea, alleging failure to apply the Guidelines with regard to mitigating circumstances The contested decision 187 In the Decision it is considered that the doubt which the Luxembourg case-law of the time may have created until March 1996 as to whether the restrictions relating to the mutual observance of ‘beer ties’ constituted an infringement justifies a 20% reduction in the amount of the fine (recital 100). Arguments of the parties 188 In support of this part of the plea, the applicants submit, first, that the Commission was wrong to recognise the mitigating circumstance resulting from the doubt created by the abovementioned Luxembourg case-law only up to March 1996, as that date cannot be regarded as the final date of the risk that gave rise to the Agreement. Brasserie Nationale adds that the possibility of appeal and of diverging case-law justifies that that doubt be recognised as a mitigating circumstance until the termination of the Agreement, or at the very least until the expiry of the average period for processing an appeal in a Member State such as Luxembourg, that is to say three years. In those circumstances, according to Brasserie Nationale, a reduction of at least 40% in the fine is justified. 189 Second, the applicants claim that the mitigating circumstances listed in the Guidelines include the ‘Non-implementation in practice of the offending agreements or practices’ (third indent of Section 3). Consequently, the non-implementation of the provisions of the Agreement with regard to foreign brewers justifies an additional reduction of the amount of the fines. 190 The Commission contends that this part of the second plea is not well founded. Findings of the Court 191 With regard to the applicants’ first argument, it must be recalled that the Commission considered that the problem of legal uncertainty raised by the parties did not merit a derogation from Article 81(1) EC (recital 62). As the Court has found when examining the third part of the first plea, that consideration is not wrong, as such a concern cannot justify a restrictive practice with an anti-competitive object. 192 Since that problem did not justify a restrictive practice of that kind, it cannot be taken into account as a mitigating circumstance warranting a reduction in the fine imposed because of that restrictive practice. 193 The problem of legal uncertainty raised by the parties cannot justify the recognition of reasonable doubt as to whether the anti-competitive conduct in the present case was an infringement, within the meaning of Section 3 of the Guidelines, because, as has been found above, the Agreement constituted an agreement with the object of sharing the market and, in addition, partitioning the common market. 194 It follows that, by reducing the applicants’ fine by 20% on account of that doubt, the Commission did not infringe their rights under Community law. 195 As regards the applicants’ second argument, the second indent of Section 3 of the Guidelines, mentioned above, may not be interpreted as referring to the case in which an agreement as a whole is not implemented, regardless of the conduct of each undertaking, but must be understood as a circumstance based on the individual conduct of each undertaking. 196 The applicants adduce no evidence from which it may be concluded that they should have had the benefit of the mitigating circumstance that the Agreement was not implemented in practice, pursuant to the second indent of Section 3 of the Guidelines, in other words evidence demonstrating that they actually desisted from implementing the agreement by behaving competitively in the market. 197 It follows from the foregoing that the third part of the second plea must be rejected. Fourth part of the second plea (raised only in Case T‑49/02), alleging the failure to state reasons for the initial basic amount used by the Commission for calculating the fines The contested decision 198 In the Decision, the infringement is classified as serious, for the combination of reasons described above. The Commission considered that it was also necessary to take account of the effective economic capacity of the parties to cause damage, while setting the amount of the fine at a level which ensures that it has a sufficiently deterrent effect, and to apply weightings to that amount in order to take account of the specific impact of the offending conduct of each party. Hence, on the basis of their respective sales in the sector concerned, the parties were divided into three groups and the amount used in respect of the gravity of the infringement for the first group referred to in recital 95 of the Decision, concerning Brasserie de Luxembourg, was set at EUR 500 000 (recitals 92 to 95). Arguments of the parties 199 Brasserie Nationale complains that the Commission did not provide an adequate statement of reasons for the initial basic amount for the first group of undertakings referred to in recital 95 of the Decision, which amount affects all the calculations for each party. That prevents judicial review of the fine imposed on Brasserie Nationale and therefore justifies annulment of the fine. 200 The Commission contends that this part of the second plea is not well founded. Findings of the Court 201 In the light of the requirements as regards stating reasons referred to in Article 253 EC and recalled in paragraph 142 above, it must be held that, having regard to the information contained in recitals 92 to 95 of the Decision, Brasserie Nationale was fully in a position to raise pleas alleging that the calculation criteria that led the Commission to use the amount of EUR 500 000 for the first group referred to above were unlawful. 202 It is clear from those recitals that the Commission arrived at that amount by first classifying the infringement as serious and then taking account of the economic capacity of Brasserie de Luxembourg to cause damage to other operators, of the need to set the amount of the fine at a sufficiently deterrent level, and of the specific weight of its offending conduct, determined on the basis of its sales in the Luxembourg on-trade. 203 Hence, the fourth part of the second plea must be rejected. 204 As all the parts of the second plea have been rejected, the second plea must be rejected in its entirety. 205 Consequently, the present actions must be dismissed in their entirety. Costs 206 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 207 Since the applicants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber) hereby: 1. Dismisses the actions; 2. Orders the applicants to pay the costs. Meij Forwood Pelikánová Delivered in open court in Luxembourg on 27 July 2005. H. Jung A.W.H. Meij Registrar President Table of contents Facts The contested decision Procedure Forms of order sought by the parties Law 1. First plea: infringement of Article 81(1) EC Assessment of the object of the Agreement (third, fourth and first parts of the first plea) The contested decision Arguments of the parties – Allegedly wrong classification of the Agreement as having the object of maintaining clienteles (third part of the first plea) – Allegedly wrong classification of the Agreement as having the object of impeding the penetration of the Luxembourg on-trade (fourth part of the first plea) – Failure to take sufficient account of the context of the Agreement in assessing its object (first part of the first plea) Findings of the Court – Allegedly wrong classification of the Agreement as having the object of maintaining clienteles (third part of the first plea) – Allegedly wrong classification of the Agreement as having the object of impeding the penetration of the Luxembourg on-trade (fourth part of the first plea) – Failure to take sufficient account of the context of the Agreement in assessing its object (first part of the first plea) Second part of the first plea, alleging that the Commission wrongly concluded that the Agreement applied where no ‘beer tie’ existed The contested decision Arguments of the parties Findings of the Court Fifth part of the first plea, alleging that the Agreement had no appreciable effect on competition The contested decision Arguments of the parties Findings of the Court – Alleged error of assessment – Alleged failure to state reasons 2. Second plea: infringement of Article 15(2) of Regulation No 17 and non‑compliance with the obligation to state reasons enshrined in Article 253 EC First part of the second plea, claiming that the infringement was not committed intentionally The contested decision Arguments of the parties Findings of the Court – Alleged error of assessment – Alleged failure to state reasons Second part of the second plea, alleging an error of assessment as to the gravity and duration of the infringement The contested decision Arguments of the parties Findings of the Court – Gravity of the infringement – Duration of the infringement Third part of the second plea, alleging failure to apply the Guidelines with regard to mitigating circumstances The contested decision Arguments of the parties Findings of the Court Fourth part of the second plea (raised only in Case T‑49/02), alleging the failure to state reasons for the initial basic amount used by the Commission for calculating the fines The contested decision Arguments of the parties Findings of the Court Costs * Language of the case: French.