Case T-240/07

Heineken Nederland BV and

Heineken NV

v

European Commission

(Competition – Agreements, decisions and concerted practices – Dutch beer market – Decision finding an infringement of Article 81 EC – Evidence of the infringement – Access to the file – Fines – Principle of equal treatment – Reasonable time)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Contact incompatible with the obligation for each undertaking to determine independently its conduct on the market – Exchange of information – Presumption – Conditions

(Art. 81(1) EC)

3. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence

(Art. 81(1) EC)

4. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Documentary proof

(Art. 81(1) EC)

5. Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters – Applicability

(Art. 81(1) EC)

6. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements submitted in the context of the Leniency Notice by other undertakings which participated in the infringement – Whether permissible – Conditions

(Arts 81 EC and 82 EC)

7. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement borne by the Commission – Limits

(Art. 81(1) EC)

8. Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient

(Art. 81(1) EC)

9. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Probative value of evidence provided voluntarily against an undertaking by the main participants in an unlawful agreement in order to benefit from the application of the Leniency Notice

(Art. 81(1) EC; Commission Notice 96/C 207/04)

10. Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as an ‘agreement and/or concerted practice’ – Whether permissible

(Art. 81(1) EC)

11. Competition – Agreements, decisions and concerted practices – Participation in meetings having an anti-competitive object

(Art. 81(1) EC)

12. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate a document – Consequences – Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents

(Council Regulation No 1/2003, Art. 27(2))

13. Competition – Administrative procedure – Access to the file – Documents not contained in the investigation file and not retained by the Commission to be used as evidence – Documents capable of assisting the defence of the parties

(Arts 81(1) EC and 82 EC; EEA Agreement, Arts 53, 54 and 57; Council Regulation No 139/2004; Commission Notice 2005/C 325/07, Section 27)

14. Competition – Administrative procedure – Observance of the rights of the defence – Incriminating document – Concept

(Council Regulation No 1/2003, Art. 27(2))

15. Competition – Administrative procedure – Commission decision finding an infringement – Duty of the Commission to examine carefully and impartially all the relevant aspects of the individual case

16. Competition – Administrative procedure – Commission’s premature display of its belief as to the existence of an infringement

17. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Criteria for assessment – Infringement – Consequences

(Council Regulation No 1/2003)

18. Competition – Administrative procedure – Request for information – General duty of care attaching to undertakings or associations of undertakings

(Council Regulation No 17, Art. 11)

19. Competition – Fines – Amount – Determination – Commission’s margin of discretion – Limits – Compliance with the Guidelines adopted by the Commission – Judicial review

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Actual impact on the market taken into account – Scope

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Consideration of effects on a specific geographic area – Scope

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

22. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Discretion of the Commission

(Council Regulations No 17 and No 1/2003; Commission Notice 98/C 9/03)

23. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Conditions

(Commission Notice 98/C 9/03, Section 1A, sixth para.)

24. Competition – Fines – Decision imposing fines – Obligation to state the reasons on which the decision is based – Scope – Indication of the factors which enabled the Commission to determine the gravity of the infringement – Sufficient indication

(Art. 253 EC; Council Regulation No 1/2003, Art. 23(2) and (3))

25. Competition – Fines – Amount – Determination – Deterrent effect – Criteria for appraising the deterrent

(Commission Notice 98/C 9/03, Section 1A, fourth para.)

26. Competition – Fines – Amount – Determination – Deterrent effect – Discretion of the Commission

(Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 1A, fourth para.)

27. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Termination of the infringement as soon as the Commission intervenes – Scope

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3)

28. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Non-implementation in practice of the unlawful agreements

(Art. 81(1) EC; Commission Notice 98/C 9/03, Section 3)

29. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines – Whether permissible – Conditions

(Article 81 EC; Council Regulation No 1/2003)

30. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Infringement – Consequences – Equitable reduction in the amount of the fine

(Arts 81 EC and 288, second para., EC)

1. In order 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. An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation.

The existence of an agreement within the meaning of Article 81 EC is not called into question either by the fact that the consensus between the brewers does not extend to the specific arrangements for implementing a price increase or the fact that that increase never actually took place on the market.

(see paras 44-45, 183)

2. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them.

In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition.

In this regard, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted action 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 will be all the more true where the undertakings concert together on a regular basis over a long period.

(see paras 46-47, 186)

3. As regards establishing an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement. Thus, the Commission must produce sufficiently precise and consistent evidence to establish the existence of the infringement.

However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

As anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

(see paras 48-51)

4. Where the Commission has relied on documentary evidence in support of its finding of the existence of an anti-competitive agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient.

(see para. 52)

5. As regards the scope of review by the Court, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the conditions for the application of Article 81(1) EC are met.

Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance with the principle of the presumption of innocence, which, as a general principle of EU law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 53-54)

6. There is no provision or general principle of EU law that prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 81 EC and 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty.

Admittedly, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence. Such a statement can thus not suffice, in itself, to establish the existence of an infringement but must be corroborated by other evidence. Nevertheless, the degree of corroboration required in this case is lesser, in terms both of precision and of depth, in the case of a statement that is of high reliability than in the case of a statement that is not particularly credible.

Thus, if it were to be held that a body of consistent evidence corroborated the existence and certain specific aspects of the practices mentioned in such a particularly reliable statement, that statement might be sufficient in itself, in such a case, to constitute evidence of other aspects of the Commission decision.

Moreover, provided that a document does not manifestly contradict the statement as to the existence or the essential content of the practices in question, the fact that it provides evidence of significant elements of the practices which it described is sufficient to endow it with a certain value within the body of inculpatory evidence.

(see paras 70, 92-94)

7. The Commission often has to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated therein.

Whilst it is necessarily incumbent upon the Commission to establish that an illegal market-sharing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was attained. It would be too easy for an undertaking guilty of an infringement to escape any penalty if it was entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission.

(see para. 78)

8. It follows from the actual text of Article 81 EC that agreements and concerted practices between undertakings are prohibited, regardless of their effect on the market, when they have an anti-competitive object. Thus, where the Commission has established the existence of agreements and concerted practices which have an anti-competitive object, this finding cannot be refuted by information relating to the non-application of collusive arrangements or the absence of any effect on the market.

(see paras 79-80)

9. Even if some caution as to evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, considering the possibility that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive for the other participants in the cartel to submit distorted evidence. Any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice.

(see para. 91)

10. Given such a complex factual situation, the dual characterisation by the Commission of anti-competitive conduct as ‘a complex of agreements and/or practices’, inasmuch as that conduct includes both elements that must be classified as ‘agreements’ and elements that must be classified as ‘concerted practices’, must be understood not as requiring, simultaneously and cumulatively, proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81 EC, which lays down no specific category for a complex infringement of this type.

(see para. 191)

11. Where an undertaking has, even without playing an active role, attended a meeting during which unlawful concerted action has been mooted, it is deemed to have participated in that concerted action unless it proves that it openly distanced itself from it or informed the other participants that it intended to take part in that meeting in a spirit that was different from theirs.

(see para. 195)

12. The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that uncommunicated document had to be disallowed as evidence.

By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence, demonstrating inter alia that it would have been able to put forward evidence which did not agree with the findings made by the Commission at the stage of the statement of objections and would therefore have been able to have some influence on the assessment in the decision.

(see paras 235-238)

13. The statement of objections is a document whose aim is to delimit the scope of the procedure initiated against an undertaking and to ensure that the rights of the defence may be exercised effectively. It is from that aspect that the statement of objections is subject to procedural safeguards, pursuant to the principle of respect for the rights of the defence, one of which is the right of access to documents in the Commission’s file.

The replies to the statement of objections are not part of the investigation file proper. Since they are documents which are not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose those replies to other parties involved only if it transpires that they contain new incriminating or exculpatory evidence. Similarly, under paragraph 27 of the Commission notice on the rules for access to the Commission file in cases pursuant to Articles 81 EC and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Regulation No 139/2004, as a general rule, the parties do not have access to the replies to the statement of objections of the other parties involved in the investigation. A party is granted access to such documents only where they may constitute new evidence, whether of an incriminating or of an exculpatory nature, pertaining to the allegations concerning that party in the Commission’s statement of objections.

In this respect, concerning, first, new incriminating evidence, it is settled case-law that, if the Commission wishes to rely on evidence from a reply to a statement of objections in order to prove the existence of an infringement, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such new evidence.

On the other hand, as regards new exculpatory evidence, the Commission is not obliged to make it available of its own initiative. If, during the administrative procedure, the Commission has rejected an applicant’s request for access to documents which are not in the investigation file, an infringement of the rights of the defence may be found only if it is proved that the outcome of the administrative procedure might have been different if the applicant had had access to the documents in question during that procedure.

(see paras 239-244, 253)

14. A document cannot be regarded as an inculpatory document unless it is used by the Commission in support of its finding of an infringement by an undertaking.

In order to establish a breach of its rights of defence, it is not sufficient for the undertaking in question to show that it was not able to express its views during the administrative procedure on a document used in a given part of the contested decision. It must demonstrate that the Commission used that document in the contested decision as further evidence of an infringement in which the undertaking participated.

(see para. 245)

15. The rights guaranteed by the EU legal order in administrative procedures include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

(see para. 268)

16. The existence of an infringement must be assessed having regard only to the evidence gathered by the Commission. Where the substance of an infringement is actually established at the end of the administrative procedure, evidence of a premature manifestation by the Commission, during that procedure, of its conviction that the infringement exists is not of such a kind as to deprive the actual evidence of the infringement itself of its reality.

(see para. 278)

17. Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the EU judicature ensures.

For the purposes of the application of that principle, a distinction must be drawn between the two stages of the administrative procedure, namely the investigation stage preceding the statement of objections and the stage corresponding to the remainder of the administrative procedure. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, under the powers conferred by the legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement alleged.

A period of 65 months of the first stage of the procedure, in the absence of further explanation or information from the Commission regarding the measures of inquiry undertaken during that period, must be regarded as excessive. However, a finding that there has been a breach of the reasonable time principle may result in the annulment of a decision establishing an infringement only where the length of the proceedings affected their outcome.

(see paras 286-288, 290, 292, 295)

18. By virtue of a general duty of care attaching to any undertaking or association of undertakings, the applicants are required to ensure the proper maintenance of records in their books or files of information enabling details of their activities to be retrieved, in order, in particular, to make the necessary evidence available in the event of legal or administrative proceedings.

When an undertaking receives requests for information from the Commission under Article 11 of Regulation No 17, it is a fortiori incumbent on it to act with greater diligence and to take all appropriate measures in order to preserve such evidence as might reasonably be available to them.

(see para. 301)

19. The Commission enjoys a broad discretion as regards the method for calculating fines. That method, 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, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC.

In addition, in areas such as determining the amount of a fine under Regulation No 1/2003, where the Commission has such a discretion, review of the legality of its assessments is limited to determining the absence of manifest error of assessment. The discretion enjoyed by the Commission and the limits which it has imposed in that regard have no bearing, however, on the exercise by the EU judicature of its unlimited jurisdiction, which empowers it to annul, reduce or increase the fine imposed by the Commission.

(see paras 308-310)

20. The gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, in respect of which the Commission has a margin of discretion.

In particular, according to the first paragraph of Section 1.A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) ECSC Treaty, 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. In the exercise of its unlimited jurisdiction, the Court must consider whether the amount of the fine imposed is proportionate to the gravity of the infringement and must weigh the seriousness of the infringement with the circumstances invoked by the undertaking.

Very serious infringements within the meaning of the third indent of the second paragraph of Section 1.A of the Guidelines are generally ‘horizontal restrictions such as price cartels and market‑sharing quotas’. Cartels of this kind constitute one of the most serious forms of damage to competition, in that their aim is quite simply to eliminate competition between the undertakings which implement them, and therefore run counter to the fundamental objectives of the EU. Furthermore, the Commission may classify horizontal price or market‑sharing cartels as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market.

While the existence of an actual impact of the infringement on the market is a factor to be taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1.A of the Guidelines that that impact is to be taken into account only where this can be measured.

(see paras 314-316, 319-320, 324-325)

21. The entire territory of a Member State constitutes a substantial part of the common market. Infringements such as agreements or concerted practices involving in particular price fixing or market sharing may be classified as very serious on the basis of their nature alone, it not being necessary for such conduct to cover a particular geographic area.

This conclusion is further confirmed by the fact that, while the indicative description of serious infringements 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 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, the description of very serious infringements makes, by contrast, no mention of a requirement that there be a specific impact on the market or that there be effects in a particular geographic area.

Accordingly, the fact that the size of the geographic market in question has a national dimension does not, in any event, preclude categorisation of the infringement as very serious. The size of the relevant product market is not, in principle, a factor that must necessarily be taken into account but simply one relevant factor among others in assessing the gravity of the infringement and fixing the amount of the fine.

(see paras 337, 339-342)

22. The Commission, pursuant to Regulation No 17 and Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules and that it may at any time adjust the level of fines to the needs of that policy.

The Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters. Decisions in other cases can give only an indication for the purpose of determining whether there is discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same.

The Commission assesses the gravity of infringements by reference to numerous factors, which are not based on a binding or exhaustive list of the criteria which must be applied. Nor is it bound to apply a precise mathematical formula, either for the total amount of the fine or where it is broken down into different elements. In these circumstances, a direct comparison of the fines imposed on the addressees of the two decisions concerning distinct infringements is likely to distort the specific functions performed by the different stages in the calculation of a fine. The final amounts of the fines reflect the specific circumstances of each cartel.

(see paras 345, 347, 350-351)

23. According to the sixth paragraph of Section 1.A of 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, for an infringement of a certain gravity, where an infringement involves several undertakings, such as cartels, it may be necessary to apply weightings to the starting amount in order to establish a specific starting amount which takes account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type.

Consideration of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition concerns the division of the members of a cartel into categories, in the light of their size on the market during the reference period, and does not mean that the impact on the market of the infringement taken as a whole must be taken into consideration.

The application of differential treatment on the basis of that provision does not require the actual impact of the infringement on the market to be taken into consideration.

(see paras 356-358)

24. The essential procedural requirement to state reasons for the method of calculation of the fine is satisfied, according to settled case-law, where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement.

In the statement of reasons explaining the increase in the level of the fine, the Commission is not required to indicate the figures which guided, in particular as regards the deterrent effect sought, the manner in which it exercised its discretion.

(see paras 360, 375)

25. In order to determine the amount of the fine, the Commission must ensure its deterrent effect.

In this respect, the Commission may inter alia take into consideration the size and the economic power of the undertaking in question.

Similarly, the fourth paragraph of Section 1.A of 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 provides that it is also necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect.

The Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules. The fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is precluded from raising that level, at any time, to ensure the implementation of competition policy and to strengthen the deterrent effect of fines.

(see paras 367-369, 372)

26. Legal certainty is a general principle of EU law which requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them.

The corollary of this principle is the principle that penalties must have a proper legal basis, which requires that offences and the relevant penalties must be clearly defined by law.

Although Article 23(2) and (3) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC leave the Commission a wide discretion, they nevertheless limit the exercise of that discretion by establishing objective criteria to which it must adhere.

Thus, first, the amount of the fine that may be imposed is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance.

Second, the exercise of that discretion is also limited by rules which the Commission has imposed upon itself 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, and the Commission’s administrative practice is fully subject to review by the Courts of the EU.

A prudent operator, if need be by taking legal advice, can foresee in a sufficiently precise manner the method and order of magnitude of the fines which he incurs for a given line of conduct, and the fact that the operator cannot know in advance precisely the level of the fines which the Commission will impose in each individual case cannot constitute a breach of the principle that penalties must have a proper legal basis. In addition, undertakings involved in an administrative procedure in which fines may be imposed must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. The fact that the Commission could at any time review the general level of fines when implementing another competition policy is therefore reasonably foreseeable for the undertakings involved.

(see paras 383-386)

27. Under Section 3 of 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, the basic amount of the fine set by the Commission is to be reduced when, for example, the undertaking which is the subject of the complaint terminates the infringement as soon as the Commission intervenes.

The grant of such a reduction of the basic amount of the fine is linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. In particular, to recognise a mitigating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if it were discovered they could expect, by then curtailing the infringement, their fine to be reduced.

Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC. It is an attenuating circumstance which, with a view to the effectiveness of Article 81(1) EC, must be given a strict interpretation, and only the particular circumstances of the specific case can warrant it being taken into account.

In particular, the fact that an intentional infringement was terminated cannot be regarded as a mitigating circumstance where it was terminated as a result of the Commission’s intervention.

The mere fact that the Commission has found in its previous decisions that certain factors constituted mitigating circumstances for the purpose of setting the fine does not mean that it is obliged to do so also in a subsequent decision.

(see paras 394-397, 401)

28. Although the fact that an undertaking does not act on unlawful arrangements is not capable in itself of excluding its liability, it is nevertheless a circumstance which must be taken into account, as a mitigating circumstance, in the determination of the amount of the fine.

(see para. 409)

29. The fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is precluded from raising that level within the limits indicated in Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC if that is necessary to ensure the implementation of competition policy. On the contrary, the proper application of the competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

An undertaking cannot validly claim that its penalty could have been lower if the Commission had concluded the administrative procedure earlier, since it increased the general level of penalties in the course of the administrative procedure.

In the light of the foregoing, the length of the administrative procedure, although excessive, cannot be regarded as having an effect on the content of the contested decision simply because the Commission increased the level of fines in the meantime.

(see paras 418-420)

30. A procedural irregularity, even though it is not capable of resulting in the annulment of the decision, may justify a reduction of the fine. Failure to adjudicate within a reasonable time can justify the Commission’s decision to make an equitable reduction in the amount of a fine, the possibility of granting such a reduction falling within the scope of the Commission’s powers. The exercise of that power by the Commission does not prevent the Court, in the exercise of its unlimited jurisdiction, granting a further reduction of the amount of the fine.

The purpose of reducing the fine is to rectify the breach of the reasonable time principle and it must therefore be determined at an appropriate level having regard to the fine imposed on the undertaking. Nevertheless, that reduction is made on an equitable basis and does not have to be preceded by an examination of the conditions for the non‑contractual liability of the European Union within the meaning of the second paragraph of Article 288 EC.

(see paras 425-426, 428, 432)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

16 June 2011 ( )

(Competition – Agreements, decisions and concerted practices – Dutch beer market – Decision finding an infringement of Article 81 EC – Evidence of the infringement – Access to the file – Fines – Principle of equal treatment – Reasonable time)

In Case T-240/07,

Heineken Nederland BV, established in Zoeterwoude (Netherlands),

Heineken NV, established in Amsterdam (Netherlands),

represented by T. Ottervanger and M. de Jong, lawyers,

applicants,

v

European Commission, represented initially by A. Bouquet, S. Noë and A. Nijenhuis, and subsequently by A. Bouquet and S. Noë, acting as Agents, and by M. Slotboom, lawyer,

defendant,

APPLICATION for partial annulment of Commission Decision C (2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766 – Dutch beer market) and, in the alternative, for reduction of the fine imposed on the applicants,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of V. Vadapalas (Rapporteur), acting for the President, A. Dittrich and L. Truchot, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 25 March 2010,

gives the following

Judgment

Facts

1 The applicants, Heineken Nederland BV and Heineken NV, are members of the Heineken group (‘Heineken’), whose business is to produce and market beer. Heineken NV is responsible for management of the group, whilst Heineken Nederland is a beer production company. Heineken NV, through its wholly-owned subsidiary, Heineken Nederlands Beheer BV, holds all the shares in Heineken Nederland.

2 Heineken is one of the four main operators on the Dutch beer market. The other leading brewers on that market are, first, the InBev group (‘InBev’), which, prior to 2004, was known under the name Interbrew, which is managed by InBev NV and whose production is the responsibility of the subsidiary InBev Nederland NV, second, the Grolsch group (‘Grolsch’), which is managed by Koninklijke Grolsch NV, and, third, Bavaria NV.

3 The applicants and the other three leading brewers on that market sell their beer to end-customers, using two distribution channels in particular. A distinction should thus be drawn between the on-trade establishment channel, that is to say, hotels, restaurants and cafes, where drinks are consumed on the premises, and the off‑trade channel of supermarkets and off-licences, where beer is sold for home consumption. This latter sector also includes the private label beer segment. Of the four brewers concerned, only InBev and Bavaria are active in that segment.

4 The four brewers are members of the Centraal Brouwerij Kantoor (Central Brewery Office (CBK)). This is an umbrella organisation which, according to its statutes, represents the interests of its members and is composed of a general assembly and various working parties, such as the Working Party for on-trade matters and the Working Party on finance, which has become its steering committee. For meetings which take place within the CBK, its secretariat sends the participating members invitations and sequentially numbered official minutes.

Administrative procedure

5 By letters of 28 January 2000 and of 3, 25 and 29 February 2000, InBev made a series of statements providing information on restrictive business practices on the Dutch beer market. Those statements were made during an investigation conducted by the Commission of the European Communities, in particular in 1999, into cartel activities and a possible abuse of a dominant position on the Belgian beer market. In conjunction with these statements, InBev made a leniency application in accordance with the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’).

6 On 22 and 23 March 2000, following the statements by InBev, the Commission carried out inspections at the premises of the applicants and of the other undertakings concerned. Other requests for further information were sent to the applicants and the other undertakings concerned between 2001 and 2005.

7 On 30 August 2005, the Commission sent a statement of objections to the applicants and to the other undertakings concerned. By letter of 24 November 2005, the applicants submitted their written observations on that statement. None of the parties concerned requested an oral hearing.

8 By letters of 26 January and 7 March 2006, additional documents were brought to the applicants’ attention by the Commission. These included requests for information sent to InBev and replies to those requests.

9 On 18 April 2007, the Commission adopted Decision C (2007) 1697 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766 – Dutch beer market) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 20 May 2008 (OJ 2008 C 122, p. 1), which was notified to the applicants by letter of 24 April 2007.

The contested decision

The infringement at issue

10 Article 1 of the contested decision states that the applicants and InBev NV, InBev Nederland, Koninklijke Grolsch and Bavaria participated, during the period from 27 February 1996 to 3 November 1999, in a single and continuous infringement of Article 81(1) EC by entering into a complex of agreements and/or concerted practices the object of which was to restrict competition within the common market.

11 The infringement consisted, first, in coordinating prices and price increases for beer in the Netherlands, in both the on-trade and the off-trade sector, including with regard to private label beer, and, second, in occasionally coordinating other commercial conditions offered to individual customers in the on-trade sector in the Netherlands, such as loans to businesses, and, third, in occasionally coordinating customer allocation, in both the on-trade and the off-trade sector in the Netherlands (Article 1 of and recitals 257 and 258 to the contested decision).

12 According to the contested decision, the anti-competitive conduct of the brewers took place during a cycle of unofficial multilateral meetings which regularly brought together the four main operators on the Dutch beer market and at additional bilateral meetings involving different combinations of the same brewers. According to the contested decision, these meetings took place secretly, intentionally, because the participants knew that they were not permitted (recitals 257 to 260 to the contested decision).

13 Thus, firstly, a series of multilateral meetings known as ‘Catherijne overleg’ (Catherijne consultation) or ‘agendacommissie’ (Working Group on agenda) were held between 27 February 1996 and 3 November 1999. The contested decision finds that the main object of these meetings, which focused on the on-trade sector, but could also deal with the off-trade sector, was to coordinate prices and price increases for beer, to discuss limiting the amount of discounts and customer allocation and to consult on certain other commercial conditions. Prices of private label beer were also discussed in these meetings (recitals 85, 90, 98, 115 to 127 and 247 to 252 to the contested decision).

14 Secondly, as far as bilateral contacts between the brewers are concerned, the contested decision states that on 12 May 1997 InBev and Bavaria met and discussed the price increase for private label beer (recital 104 to the contested decision). Furthermore, according to the Commission, the applicants and Bavaria met in 1998 to discuss restrictions relating to points of sale in the on-trade sector (recital 189 to the contested decision). The Commission states that bilateral contacts also took place on 5 July 1999 between the applicants and Grolsch on the subject of compensation granted to customers in the off-trade sector who made temporary price reductions (recitals 212 and 213 to the contested decision).

15 Lastly, according to the contested decision, bilateral contacts and exchanges of information took place between InBev and Bavaria in 1997 consisting in general discussions on beer prices and discussions dealing more with private labels. Bilateral contacts, in the form of exchanges of information, on the subject of private labels also involved the Belgian brewers in June and July 1998. The Commission states that those discussions were attended by the applicants and by Grolsch (recitals 105, 222 to 229 and 232 to 236 to the contested decision).

16 Heineken NV was held liable on the ground that, during the period in which the infringement took place, Heineken Nederland was, directly or indirectly, its wholly-owned subsidiary and this fact, confirmed by other material in the file, shows that it exercised a decisive influence over the commercial policies of its subsidiary (recitals 400 to 414 to the contested decision).

The fine imposed on the applicants

17 Article 3(a) of the contested decision imposes on the applicants, jointly and severally, a fine of EUR 219 275 000.

18 In order to calculate the amount of that fine, the Commission applied Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and the methodology 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) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’) (recitals 436 and 442 to the contested decision). In accordance with that methodology, the fine imposed on the applicants was determined according to the gravity and duration of the infringement (recital 437 to the contested decision).

19 In particular, the infringement was categorised as ‘very serious’ in so far as it essentially consisted in regularly coordinating prices, price increases, other commercial conditions and customer allocation (recital 440 to the contested decision). The Commission also took account of the secret and intentional character of the anti-competitive conduct and the fact that the entire territory of the Netherlands and the entire beer market, both the on-trade sector and the off‑trade sector, were affected by the infringement (recitals 453 and 455 to the contested decision). In addition, the Commission stated that the actual effect on the Dutch market of the anti-competitive conduct had not been taken into account in the present case, as it was impossible to measure (recital 452 to the contested decision).

20 Furthermore, the Commission applied differential treatment to the applicants in order to take account of their effective economic capacity and their individual weight in the anti-competitive conduct established. To that end, the Commission used the sales figures for beer sold by the applicants in the Netherlands in 1998, the last full calendar year of the infringement. On that basis, the applicants were placed in the first category, corresponding to the starting amount of EUR 65 000 000 (recital 462 to the contested decision).

21 In order to ensure a sufficiently deterrent effect, a multiplier of 2.5 was applied to that starting amount, in view of Heineken’s high turnover (recital 464 to the contested decision).

22 As the applicants had taken part in the infringement from 27 February 1996 to 3 November 1999, that is to say, for a period of three years and eight months, that starting amount was increased by 35% (recitals 465 and 466 to the contested decision). The basic amount was therefore fixed at EUR 219 375 000.

23 Lastly, the Commission granted a reduction of EUR 100 000 in the amount of the fine since it acknowledged that in the present case the length of the administrative procedure had been unreasonable (recitals 495 to 499 to the contested decision).

Procedure and forms of order sought

24 By application lodged at the Registry of the General Court on 4 July 2007, the applicants brought the present action.

25 By decision of 10 February 2010, the Court referred the case to the Sixth Chamber (Extended Composition) in accordance with Article 14(1) and Article 51(1) of its Rules of Procedure.

26 By way of measures of organisation of procedure of 12 February 2010, the Court sent a number of written questions to the Commission, which replied within the period allowed.

27 The parties presented oral argument and replied to the questions put by the Court at the hearing on 25 March 2010.

28 Since the Judge-Rapporteur was prevented from sitting after the oral procedure was closed, the case was reassigned to a new Judge-Rapporteur and the present judgment was deliberated by the three judges whose signatures it bears, in accordance with Article 32 of the Rules of Procedure.

29 The applicants claim that the Court should:

– annul in whole or in part the contested decision, to the extent to which it concerns them;

– annul or reduce the fine imposed on them;

– order the Commission to pay the costs.

30 The Commission contends that the Court should:

– dismiss the application;

– order the applicants to pay the costs.

Law

31 In support of their action, the applicants rely on eleven pleas, concerning, first, a breach of the principle of sound administration and an infringement of Article 27 of Regulation No 1/2003, with regard to the refusal to grant access to the replies to the statement of objections made by other undertakings involved, second, a breach of the principle of sound administration, the ‘duty of care’ and the audi alteram partem rule, stemming from an alleged failure to carry out a careful and impartial investigation, third, a breach of the principle of the presumption of innocence, fourth, a breach of the reasonable time principle in the administrative procedure, fifth, insufficient evidence of the infringement, sixth, the absence of agreements and/or concerted practices within the meaning of Article 81(1) EC, seventh, an erroneous determination of the duration of the infringement, eighth, infringements of Article 23(3) of Regulation No 1/2003 and of the Guidelines, breaches of the principles of equal treatment, legal certainty and proportionality and a breach of the obligation to state reasons, in relation to the determination of the amount of the fine, ninth, a misappraisal of attenuating circumstances, tenth, the effect of the length of the administrative procedure on the amount of the fine and, eleventh, the excessively low reduction of the fine granted by the Commission by reason of the excessive length of the administrative procedure.

32 The Court considers that the fifth, sixth and seventh pleas, which essentially seek to dispute the infringement, should be examined first, followed by the first, second, third and fourth pleas, alleging procedural defects and a breach of the rights of the defence and, lastly, the eighth, ninth, tenth and eleventh pleas, which concern the determination of the amount of the fine.

The fifth and sixth pleas, concerning, respectively, insufficient evidence of the infringement and the absence of agreements and/or concerted practices within the meaning of Article 81(1) EC

Arguments of the parties

33 In the fifth plea, the applicants essentially claim that the evidence relied on by the Commission in the contested decision is not sufficient to prove the existence of an infringement of Article 81 EC beyond reasonable doubt. The Commission’s finding to that effect is thus contrary to the principle of the presumption of innocence and the obligation to state reasons.

34 To that end, the applicants dispute the probative value of the statement by InBev, which represents the main pillar of the contested decision, on the grounds that it is very vague and contradictory and that it is based partly on information obtained from third parties. In addition, they allege that the Commission did not assess whether that statement was made responsibly and after careful reflection and did not follow up the exculpatory statements which it contained.

35 The applicants also take the view that the handwritten notes produced by representatives of the Dutch brewers at the meetings in question, being fragmentary in nature, are likewise not sufficient to prove the existence of anti‑competitive conduct.

36 In the sixth plea, the applicants dispute the relevance and the Commission’s interpretation of certain documentary evidence which formed the basis for the finding of the existence of a complex of agreements and/or concerted practices which restrict competition.

37 The applicants dispute that the contacts between the brewers resulted in an agreement since a consensus was never reached between them on a certain course of action on the market.

38 They also dispute the existence of a concerted practice. In this regard, they claim that the available evidence does not indicate that the contacts between the brewers dispelled or, at least, considerably reduced uncertainty over their future conduct on the market. On the other hand, they take the view that they have sufficiently shown that the brewers’ conduct on the market was determined autonomously.

39 In addition, the applicants claim that the meetings in question never had an anti‑competitive object. The discussions at those meetings dealt with many legitimate subjects, so that talks about the situation on the market, including consumer prices on the off-trade market and including offers to certain on-trade customers, were only occasional and informal.

40 Lastly, the applicants object to the fact that they were accused of participating in the discussions between Interbrew and Bavaria concerning the private label beer segment, in which they are not active.

41 The Commission contests the applicants’ arguments.

Findings of the Court

42 By their fifth plea, the applicants essentially claim that the Commission did not prove, to the requisite legal standard, the factual findings on the basis of which it inferred the existence of the infringement. By their sixth plea, they contest the categorisation of the conduct in question as agreements and/or concerted practices within the meaning of Article 81 EC. As these two pleas seek to challenge the finding of the infringement, they should be examined together.

43 Article 81(1) EC provides that the following are to be prohibited as incompatible with the common market: 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.

44 In order 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 (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 256, and Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 199).

45 An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see, to that effect, HFB and Others v Commission, cited in paragraph 44 above, paragraphs 151 to 157 and 206).

46 The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 115, and Case C-199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 158).

47 In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni, cited in paragraph 46 above, paragraphs 116 and 117).

48 It should be borne in mind that, as regards establishing an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Commission v Anic Partecipazioni, cited in paragraph 46 above, paragraph 86).

49 Thus, the Commission must produce sufficiently precise and consistent evidence to establish the existence of the infringement (see, to that effect, Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 43 and the case-law cited).

50 However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (Joined Cases T-67/00, T‑68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraphs 179 and 180 and the case-law cited).

51 As anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C-204/00 P, C‑205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraphs 55 to 57).

52 Where the Commission has relied on documentary evidence in support of its finding of the existence of an anti-competitive agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient (JFE Engineering and Others v Commission, cited in paragraph 50 above, paragraph 187).

53 As regards the scope of review by the Court, according to settled case-law, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the conditions for the application of Article 81(1) EC are met (see Case T‑41/96 Bayer v Commission [2000] ECR II-3383, paragraph 62 and the case-law cited).

54 Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance with the principle of the presumption of innocence, which, as a general principle of European Union (‘EU’) law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Hüls v Commission, cited in paragraph 46 above, paragraphs 149 and 150, and Joined Cases T-44/02 OP, T-54/02 OP, T‑56/02 OP, T-60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission [2006] ECR II-3567, paragraphs 60 and 61).

55 The question whether, in the present case, the Commission has established to the requisite legal standard that the applicants’ conduct amounted to an infringement of Article 81(1) EC must be examined in the light of those considerations.

– The statement by InBev

56 It should be noted, first of all, that the Commission relies to a large extent (see, in particular, recitals 40 to 62 to the contested decision) on the statement made by InBev, in connection with its leniency application, by letters of 28 January and 3, 25 and 29 February 2000, supplemented by the annexed statements made by the five managers from InBev (recitals 34 and 40 to the contested decision; together ‘the statement by InBev’).

57 According to the contested decision, the statement by InBev indicated the existence of ‘various forms of concerted action ... between the brewers on the Dutch beer market’, drawing a distinction between the official meetings of the CBK general assembly, the informal meetings of the CBK Working Party on finance and the ‘other meetings’ held in parallel and known as the ‘Catherijne consultation’, whose composition varied and for which, InBev states, it has not found any written records. The ‘other meetings’ could be subdivided, inter alia, into: ‘(i) meetings of the on-trade managers of the four main brewers (Heineken, Interbrew, Grolsch and Bavaria) ...; (ii) joint meetings of the on-trade managers and the off-trade managers (two in 1998) and (iii) meetings of the off-trade managers (one in 1999 ...)’ (recitals 41 to 46 to the contested decision).

58 According to the statement by InBev, the Working Party on finance ‘had an official agenda, but was also a forum for discussions on fixing prices for the off‑trade sector and the on-trade sector [; t]hose discussions were not recorded at all’ (recital 43 to the contested decision).

59 According to the same statement, the subjects discussed at the ‘other meetings’ also covered both the on-trade sector and the off-trade sector and private label beer (recital 47 to the contested decision).

60 With regard, firstly, to the on-trade sector, two main subjects were discussed: ‘[T]here was an agreement in principle on setting maximum discounts by volume for the on-trade sector ... another subject of consultation was the investments made in the on-trade [; t]he idea was to maintain the status quo in the sector and to avoid taking customers from other brewers’ (recital 48 to the contested decision).

61 One manager from InBev claims that he does not know the precise content of that agreement and another manager describes it as ‘a very complex and vague agreement on sliding scales (discounts granted to the on-trade), in which we have never been involved’, stating that ‘[t]he consultation consisted in a bimonthly meeting of the on-trade managers, at which they discussed known infringements of the “rule” (although this was vague; they talked about market excess)’ (recital 48 to the contested decision).

62 With regard, secondly, to the off-trade sector, according to the statement by InBev, the discussions concerned both price levels in general and the specific subject of private label beer.

63 As regards price levels in general, one of the managers from InBev states that ‘it was normal for a brewery to increase its prices after informing its fellow brewers in advance …; the initiative always came from one of the big breweries, and generally from Heineken [; i]n such cases, the other breweries had the necessary time to take a position [; w]hilst the breweries broadly aligned their prices with one another, they each had and maintained their own pricing policy’ (recital 51 to the contested decision).

64 As regards private label beer, InBev states that the discussions on prices had been conducted between the Dutch operators in the segment (Bavaria and Oranjeboom, subsequently acquired by Interbrew) since 1987. It adds that ‘[t]he two parties understood, after discussing the matter together, that they would not accept any intrusion in their respective customer bases for private labels which resulted in a loss of volume’ (recital 52 to the contested decision).

65 With regard to the involvement of Heineken and of Grolsch in this sector, according to the statement by InBev, ‘[t]he Dutch market is characterised by a significant gulf between prices for private label beer (“B brands”) and [other brands (“A brands”);] Heineken, which is not present in the private labels segment, has always rejected price increases for A brands as long as the price of private label beer did not increase [; i]n this way, it exerted indirect pressure, in particular on private label producers such as Bavaria and Interbrew’ (recital 53 to the contested decision).

66 InBev states that prices for private labels were also discussed by the four brewers, in other words also in the presence of Grolsch, in the context of the more general topic of the price gaps to be maintained between prices for beer brands. According to the statement by InBev, ‘Heineken and Grolsch did not increase their prices for years and the prices of other brewers’ label beers and private label beers did not increase either [; i]n recent years, Bavaria and Interbrew have increased their prices, followed by Grolsch’ (recital 54 to the contested decision). It is also pointed out that ‘[t]hree to four years ago, these informal consultations had been incorporated into the Catherijne consultation on the on-trade, in which representatives of the CBK also participated [; a]fter a few meetings, it was decided to split these meetings back into off-trade meetings and on-trade meetings’ (recital 54 to the contested decision).

67 In addition, InBev states that for the Belgian brewer Martens to obtain a certain market share since 1996 to 1997 it had been necessary for ‘an agreement between Belgian and Dutch brewers operating on the private labels market [; t]wo meetings took place [in] Breda in 1998 […; i]t was agreed to respect the relevant volumes for private labels sold to customers established in the Netherlands and in Belgium’ (recital 55 to the contested decision).

68 According to the statements by the managers from InBev, the ‘other meetings’ were organised to give each other reassurance as to a ‘limited aggression’ on the market (recital 46 to the contested decision).

69 In its reply to the request for information, dated 19 December 2001, InBev states that ‘agendas for the previous years and notes taken at the informal meetings were destroyed at the end of November 1998 [; i]t was at about that time that the existence of concerted action between Dutch brewers started to be revealed on the market and fears began of an inspection by the Dutch competition authority [; a]gendas were also destroyed in the following years’ (recital 61 to the contested decision).

70 It must be noted from the outset that there is no provision or general principle of EU law that prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 81 EC and 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (see JFE Engineering and Others v Commission, cited in paragraph 50 above, paragraph 192).

71 In the present case, the applicants do not contest the information given in the statement by InBev to the effect that meetings took place between representatives of the Dutch beer producers. Nor do they dispute that they were represented at most of those meetings or that, at the meetings, the general situation on the beer market was discussed informally. Furthermore, they acknowledge, in the application, that concerns were also expressed occasionally at those meetings regarding off-trade price levels and problems connected with certain customers.

72 However, the applicants deny that the discussions held at those meetings led to the conclusion of an unlawful agreement or an undertaking to engage in a concerted practice. They claim that the meetings mainly dealt with legitimate subjects and that, in so far as the situation on the market was discussed, this was not for anti‑competitive purposes. In this regard, they contest the reliability of the statement by InBev, claiming that it is very vague and contradictory and contains, in part, observations which were not known directly to the authors of the statements, thereby constituting ‘hearsay evidence’.

73 As regards the contradictory character of the statement by InBev, the applicants point out that it contains a number of exculpatory statements.

74 First, there are statements which are not mentioned in the contested decision, according to which ‘[t]he discussion concerned known infringements of the sliding scales (which were, moreover, very vague) [; o]n the ground, everyone did as they wished’; ‘[o]ur conduct on the market was geared very aggressively to winning new customers – including by discounts’; ‘[w]e therefore acted perfectly lawfully’; ‘[InBev] did not conclude any agreement and did not respect anything’; ‘[the] [Catherijne] consultation did not have any tangible results in terms of the effect on the market […; w]e did not speak specifically about conduct on the market on either occasion [; t]he meeting had a more informal character’; ‘[t]here was no agreement for the food sector’; ‘[I] never observed that the meeting [of the CBK] was extended by discussions on sensitive market issues [; i]t is always possible that such meetings gave rise to informal bilateral talks but, in my view, there was nothing at stake’.

75 Second, the applicants refer to certain passages of statements cited in the contested decision, according to which: ‘Interbrew believes that this consultation never had significant effects on the market per se and was less intensive in recent times […; t]he discussions were very general in nature’ (cited in recital 45); ‘[w]e talked above all to give each other the impression that we would remain calm on the market[; t]here was little or no discussion of sliding scales or points of sale[; i]n fact, everyone was taking everyone else for an idiot [; i]n recent years, these meetings increasingly lost their substance and the consultation took on a more vague character’ (cited in recital 46); ‘[t]here was also a very complex and vague agreement on sliding scales (discounts granted to the on-trade), in which we have never been involved [; f]urthermore, I never saw any documents on this subject’ (cited in recital 48).

76 According to the applicants, those statements, aside from the fact that they are not specific, are incompatible with the Commission’s findings as to the existence of the infringement in question. In the view of the applicants, it is clear from the statements that the talks between the brewers were very general, that no agreement was concluded, that InBev did not respect any collusive arrangement and that the consultation did not have any effect on the market.

77 It should first be stated that the inferences made by the applicants on the basis of certain information in the statement by InBev, indicating the general nature of the discussions, the absence of any agreement for certain sectors and the absence of effect of the discussions on the conduct of the brewers on the market, cannot in themselves call into question the Commission’s finding relating to the existence of the infringement.

78 As regards the allegedly general character of that statement, it must be pointed out that the Commission often has to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated therein. Whilst it is necessarily incumbent upon the Commission to establish that an illegal market-sharing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it was entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission (JFE Engineering and Others v Commission, cited in paragraph 50 above, paragraph 203; see also, to that effect, Joined Cases C-403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 50).

79 Second, as regards the purported information on the absence of any effect of the conduct at issue on the market, it follows from the actual text of Article 81 EC that agreements and concerted practices between undertakings are prohibited, regardless of their effect on the market, when they have an anti-competitive object (Hüls v Commission, cited in paragraph 46 above, paragraphs 163 to 166, and Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraph 29).

80 Thus, where the Commission has established the existence of agreements and concerted practices which have an anti-competitive object, this finding cannot be refuted by information relating to the non-application of collusive arrangements or the absence of any effect on the market.

81 As regards the purported information contained in the statement by InBev regarding the absence of any agreement in the off-trade sector or in the on-trade sector, it should be noted that the passages relied on by the applicants, read in context, certainly do not rule out the existence of an agreement or of a concerted practice in the sectors concerned.

82 With regard to the off-trade sector (retail sales), the assertion made by one of the managers from InBev to the effect that ‘[t]here was no agreement for [that] sector’, is followed by a specific description of the price coordination mechanism applied by the brewers. The relevant passage reads as follows (recital 51 to the contested decision):

‘There was no agreement for the retail sales (“food”) sector. As regards the price increases for beer, it was normal for a brewery to increase its prices only after informing its fellow brewers in advance. When one of the parties made such an announcement, there would be a debate on the impact of such an increase on the market; the price increase for beer had taken place after all. The initiative always came from one of the big breweries and generally from Heineken. In such cases, the other breweries had the necessary time to take a position. Whilst the breweries broadly aligned their prices with one another, they each had and maintained their own pricing policy.’

83 Against this background, the simple fact that the manager from InBev made reference to the absence of any ‘agreement’ cannot constitute a valid argument in so far as it is for the Commission and, if appropriate, the Court to undertake the legal categorisation of the conduct described in the statements made by the officers of the undertakings concerned.

84 As regards the alleged absence of an agreement and of respect for an agreement in the on-trade sector, it is clear that the statement by a manager from InBev that ‘[InBev] did not conclude any agreement and did not respect anything’ does not refute the finding as to the existence of an agreement within the meaning of Article 81(1) EC. In his statement, the same manager from InBev explicitly mentions the existence of ‘a very complex and vague agreement on sliding scales (discounts granted to the on-trade)’ and of an agreement whose purpose was to ‘avoid too many changes in the on-trade’.

85 In the light of the foregoing, the applicants’ claims regarding the contradictory character of the statement by InBev cannot be accepted. Their argument concerning the Commission’s supposedly selective use of that statement, in so far as it failed to take account of the alleged contradictions, must also be rejected.

86 Consequently, the applicants have not demonstrated the existence of alleged contradictions which could weaken the reliability of the statement by InBev.

87 Furthermore, in claiming that the statement by InBev includes ‘hearsay evidence’, the applicants refer to its passages according to which ‘Interbrew has never seen a document containing the agreement on discounts to which the discussions referred, but the general rule seemed to be well known’ (cited in recital 45 to the contested decision), ‘I do not know of this agreement (sliding scales) myself, nor have I seen a document on this subject’, and ‘I do not know the precise content of the agreement […; f]urthermore, I never saw any documents on this subject’.

88 It should be noted that the passages mentioned by the applicants concern only the question of the existence of an agreement (‘sliding scale’) on discounts granted to customers in the on-trade sector. On this specific point, the probative value of the statement by InBev is certainly reduced in the absence of direct evidence. The reliability of the information provided regarding the existence of the ‘sliding scale’ is nevertheless reinforced because, first, it comes from two different sources and, second, it contains specific details of a ‘sliding scale’, namely the precise amount of the maximum discount (see recital 48 to the contested decision). The existence of a ‘sliding scale’ is also confirmed by two pieces of evidence independent of InBev, namely the handwritten notes by a member of the board of directors of Bavaria concerning the meeting held on 1 May 1997 (recital 92 to the contested decision) and notes made by an on-trade manager for Bavaria concerning the meeting held on 12 March 1998 (reproduced in recital 143 to the contested decision).

89 The applicants’ argument claiming ‘hearsay evidence’ cannot therefore call into question the conclusions drawn from the statement by InBev.

90 Lastly, as regards the general assessment of the reliability of the statement by InBev, the appropriate view, contrary to the applicants’ contention, is that the Commission was entitled to attribute to the statement by InBev particularly great probative value, since it is an answer given on behalf of an undertaking which as such carries more weight than that of an employee of the undertaking, whatever his individual experience or opinion. It should also be noted that the statement by InBev represented the outcome of an internal investigation carried out by the undertaking and that it was submitted to the Commission by a lawyer, who was under a professional obligation to act in the interests of that undertaking. He could not therefore lightly admit the existence of an infringement without evaluating the consequences of so doing (Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraph 45, and JFE Engineering and Others v Commission, cited in paragraph 50 above, paragraph 206).

91 Furthermore, according to case-law, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, considering the possibility that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (Case T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraph 70).

92 Admittedly, it must be borne in mind that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (see, to that effect, Case T-337/94 Enso-Gutzeit v Commission [1998] ECR II‑1571, paragraph 91, and JFE Engineering and Others v Commission, cited in paragraph 50 above, paragraph 219).

93 The statement by InBev cannot therefore suffice, in itself, to establish the existence of the infringement, but must be corroborated by other evidence.

94 Nevertheless, in view of the reliability of the statement by InBev, the degree of corroboration required in this case is lesser, in terms both of precision and of depth, than would be the case if that statement were not particularly credible. Thus, it must be concluded that, if it were to be held that a body of consistent evidence corroborated the existence and certain specific aspects of the practices mentioned in the statement by InBev and referred to in Article 1 of the contested decision, that statement might be sufficient in itself, in such a case, to constitute evidence of other aspects of the contested decision. Moreover, provided that a document does not manifestly contradict the statement by InBev as to the existence or the essential content of the contested practices, the fact that it provides evidence of significant elements of the practices which it described is sufficient to endow it with corroborative value within the body of inculpatory evidence (see, to that effect, JFE Engineering and Others v Commission, cited in paragraph 50 above, paragraph 220 and the case-law cited).

95 In the light of the foregoing, it is necessary to examine the applicants’ arguments concerning other evidence relied on by the Commission in the contested decision in order to corroborate the findings relating to the statement by InBev.

– Other evidence

96 In the contested decision, the Commission asserts that the statement by InBev is corroborated by a number of internal documents from the applicants and the three other Dutch brewers, handwritten notes from meetings, expense reports and copies of agendas obtained following investigations and requests for information.

97 In recital 67 to the contested decision, the Commission mentions the handwritten notes by a commercial manager from Grolsch relating to the meeting held on 27 February 1996, the subject of that meeting being indicated by the note ‘CBK cie HOR cath’. Those notes include the following passage: ‘Guarantees/financing: fin[ancing] for ... in excess of needs of specific points. So ... mil[lions]’.

98 According to the Commission, it is clear from this passage that the four brewers in question discussed, at a ‘Catherijne meeting’, the financial conditions applied or to be applied to certain on-trade customers (recital 72 to the contested decision) and, more specifically, to establishments run by a proprietor of multiple on-trade establishments in the Netherlands.

99 In recital 76 to the contested decision, the Commission mentions the handwritten notes by an on-trade manager for Bavaria concerning the meeting held on 19 June 1996. The notes are reproduced as follows:

‘– adapt prices

off-trade high – low

Bavaria – Interbrew consultation

... and ... -> problem ...

Martens

Schultenbrau!! 89 ct

– increase only of cask price

arguments

only Hein + Grolsch fully

Friesland US Heit

Interbrew \

| increase together

Bavaria /

-> ... also

increase bottom more than top

– air

– agreements

stabilise discount for bars 7.5 per cask Heineken

prepare representatives vis-à-vis possible agreements

Interbrew \

| air can be used

Grolsch /’.

100 According to the Commission, these notes show that the brewers present had detailed discussions of prices, both for private label beer and for beer sold in casks, and the price of cheaper beers, produced by Interbrew and Bavaria, was to increase more than the price of more expensive beers, produced by Heineken and Grolsch (recital 85 to the contested decision).

101 In recital 89 to the contested decision, the Commission mentions a letter which the managing director of Interbrew Nederland sent to InBev’s head office in Belgium on 25 March 1997:

‘There is now a consensus between the main brewers to implement a price increase before 1998. This will enable the brewers to increase their buffer for the necessary additional promotional budgets. The A brand operators are trying to differentiate the price increase between the A brands (+ 2 NLG/hl) and the B brands (+ 4 NLG/hl). This seems highly unrealistic to me – we must all support a full increase of NLG 4. I would exclude our special beers “which are easy to drink” (DAS, Hoegaarden, Leffe) from the price increase. Negotiations have begun.’

102 The Commission concluded on the basis of that letter that a price increase was planned before 1998 following price negotiations between the main producers. In addition, the same letter confirmed the existence of a distinction between more expensive and cheaper beer producers and brands (recital 90 to the contested decision).

103 In recital 92 to the contested decision, the Commission mentions the handwritten notes by a member of the board of directors of Bavaria concerning the meeting held on 1 May 1997. It cites the following passages:

‘Catherijne Club 1/5 – 97

“internal” transfers within the group

must also respect the “sliding scale”

... “The Hague”

Monster ZH [southern Holland] higher competing offer’.

104 According to the Commission, these notes confirm that the brewers were discussing a ‘sliding scale’ for the commercial conditions granted to individual points of sale, in the case of transfers from one group to another, but also in cases of transfers within a single group (recital 99 to the contested decision).

105 In recital 100 to the contested decision, the Commission states that the abovementioned notes also contain the names ‘Heineken/Amstel/Brand/Grolsch’ on the first line and the names ‘Interbrew/Bavaria’ on the second line, with the two lines being linked by a bracket followed by the words ‘no price increases’. The Commission infers that the distinction between the A brands, owned by Heineken and Grolsch, and the B brands, owned by Interbrew and Bavaria, was the focus for the discussions between the brewers concerning the price increases for beer (recital 103 to the contested decision).

106 In recital 117 to the contested decision, the Commission mentions the handwritten notes by a member of the board of directors of Bavaria concerning the meeting held on 17 December 1997. It cites the following passage:

‘(2) Price situation: March/April

one-stage rocket/two-stage rocket

(a) Heineken expects little fuss!! Heineken 18.59

(b) in the event of increase: very negotiable; wholehearted; there will be support’.

107 The Commission infers that the brewers present at the meeting held on 17 December 1997, including Bavaria, Grolsch and Heineken, were discussing price increases and possible reactions to price increases (recital 127 to the contested decision).

108 In recital 129 to the contested decision, the Commission mentions a passage from the handwritten notes by an on-trade manager for Bavaria concerning the meeting held on 12 March 1998:

‘– Not much happened since 1 January

– A brands no panic in relation to price Hein

9.95 reduction from 11.49 little point Int

9.75 9.36 Bavaria

2x 4.95 4.75 }→

private labels

prices in the lower market segment

… mid-March Bavaria something

below Amstel (17) Bavaria (15)

from 9.75 to 10.75 if nothing

happens, then Grolsch and Hein

increases pocket brewery

→ fix agreement … and Dick

This must be “demonstrable” via Nielsen otherwise

nothing will happen’.

109 According to the Commission, it is clear that the brewers present at the meeting held on 12 March 1998 discussed reductions granted to Dutch supermarkets (recital 137 to the contested decision) and that the price increases implemented by Bavaria should be demonstrable in the supermarket cash register data compiled by AC Nielsen (recital 133 to the contested decision).

110 In recital 138 to the contested decision, the Commission mentions a second passage from the abovementioned handwritten notes:

‘Bav interest 4%? 6 1/2

unless

there is an advertising commission’.

111 According to the Commission, this passage proves that a discussion was held on the level of interest rates applied to loans granted to on-trade points of sale (recital 142 to the contested decision).

112 In recital 143 to the contested decision, the Commission mentions a third passage of the abovementioned handwritten notes:

‘Football clubs concert halls theatres

Student associations

…

Grolsch

above/outside sliding scale

130

… (125) 124.5 ’.

113 According to the Commission, it is clear that the brewers held a specific discussion on precise on-trade customers in relation to a ‘sliding scale’, corroborating the statement by InBev as to the existence of an agreement known as the ‘sliding scale’ (recital 147 to the contested decision).

114 In recital 156 to the contested decision, the Commission mentions a passage from the handwritten notes by a member of the board of directors of Bavaria relating to the meeting held on 3 July 1998:

‘… Heineken increased

… >> Heineken cask beer’.

115 The Commission infers from this passage that the brewers discussed the prices applied both to customers in the off-trade sector and to an on‑trade customer (recitals 162 to 164 to the contested decision).

116 In recital 165 to the contested decision, the Commission mentions another passage from the abovementioned handwritten notes:

‘ Cafe … 1800 …

… 400 …

60 per hl

650.000,- V.B.K.’.

117 According to the Commission, it is clear from this passage that the brewers discussed a discount given and/or a commission in respect of the reduction applied or to be applied to specific on-trade points of sale (recital 171 to the contested decision).

118 In recital 174 to the contested decision, the Commission mentions a document dated 30 June 1998 and a Heineken price list announcing new prices applicable to bottled beer and draft beer (beer in tanks and beer in casks) from 1 June 1998, discovered in the office of an off-trade sales manager for Grolsch, with the note ‘agenda c[ommiss]ie CBK’ (CBK Working Party on agenda). According to the Commission, these documents corroborate the statement by InBev to the effect that both off-trade prices and competition on the on-trade market were discussed at the meetings in question (recital 175 to the contested decision).

119 In recital 179 to the contested decision, the Commission mentions a Heineken internal memo dated 14 October 1998, addressed to Heineken’s management team, which reads: ‘the price increase promised by Bavaria in the CBK is not apparent in the [figures] from Nielsen’. According to the Commission, that memo reinforces the conclusion that, at the meeting held on 12 March 1998, Bavaria had announced its intention to be the first to increase its prices in the off-trade sector, the other brewers were to follow subsequently and the increases implemented by Bavaria were to be ‘demonstrable’ in the figures from Nielsen (recital 180 to the contested decision).

120 In recital 184 to the contested decision, the Commission mentions a letter sent to a manager of Heineken’s Netherlands on-trade unit by a marketing and off-trade manager from the Heineken’s Brand BV brewery, regarding his discussion with a member of Bavaria’s board of directors:

‘At the Noordwijk food fair on 9 September [1998], [a member of Bavaria’s board of directors] spoke to me about the matter … and Heineken’s reaction. In short, he thought that Heineken could have sat down at the negotiating table with the top management at Heineken and Bavaria on the Netherlands on-trade market much earlier. The hectolitres lost could then have been compensated for in some other way. Furthermore, he added that in the long term Bavaria perhaps had its sights on other potential customers in the on-trade sector who wished to switch voluntarily (with the emphasis on “voluntarily”, as in the case of …, in his view) to Bavaria [first name of a Heineken on-trade manager for the Netherlands], it goes without saying that these comments are part of the well-known rhetoric of … I did not want to keep this information from you. All the best for your discussion.’

121 The Commission takes the view that this letter confirms the statement by InBev according to which the brewers were discussing not only restrictions on reductions, but also restrictions concerning points of sale which opted for another brewer, and not only at multilateral meetings, but also during bilateral meetings (recital 189 to the contested decision).

122 In recital 193 to the contested decision, the Commission mentions the handwritten notes by a managing director of Grolsche Bierbrouwerij Nederland on the invitation to the meeting held on 8 January 1999:

‘– sales ‘98

– beer price →

– pin-partition crates | actions/cat II

– crates | bottom

| cask

| NMA’.

123 Accordingly, in the view of the Commission, the discussions on beer prices focused on four aspects: first, promotional measures in the off‑trade market, second, the price of cheaper and private label beers, third, the price of cask beer, the large containers used in the on-trade sector of the Dutch beer market and, fourth, the Dutch competition authority, the NMA (recital 194 to the contested decision).

124 In recitals 197 and 199 to the contested decision, the Commission mentions the list of subjects for discussion at the meeting held on 8 January 1999, on which a representative of Grolsch had noted the abbreviation ‘BP’, which is interpreted by the Commission as ‘beer price’ (bierprijs) or ‘floor price’ (bodemprijs), and ‘P[rivate] L[abel] 50 ct. more’. The Commission infers from these notes that, as far as cask beer is concerned, the brewers had detailed discussion of prices (recital 203 to the contested decision).

125 In recitals 212 and 213 to the contested decision, the Commission refers to a document which contains a reference to three contacts at management level between Heineken and Grolsch on around 5 July 1999, mentioning a ‘price war’ between the two brewers. The Commission infers that Heineken had made direct contact with Grolsch about reductions, one and a half months before temporary reductions, made by a chain of shops to which Grolsch refused to grant compensation, were actually implemented (recital 213 to the contested decision).

126 In recital 224 to the contested decision, the Commission mentions a number of documents included in its administrative file which show the subjects discussed at the bilateral meetings between Bavaria and InBev on 8 March 1995, in the second half of March 1997, on 12 May 1997, on 19 June 1997 and on 8 September 1997. It cites the following passages:

– meeting on 8 March 1995: ‘[Bavaria] and [Interbrew Nederland] both said that they had serious problems with Mr ... in the Netherlands’ (footnote 491