Case T-235/07

Bavaria NV

v

European Commission

(Competition – Agreements, decisions and concerted practices – Netherlands 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 of statements submitted in the context of the Leniency Notice by other undertakings which have participated in the infringement, as a means of proof – 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 purpose – Sufficient finding

(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 – Administrative procedure – Commission decision finding an infringement in respect of an undertaking, adopted after another Commission decision referring to that undertaking only in the context of the statement of the facts but not as an addressee and not penalising it – Breach of the ne bis in idem principle – None

(Art. 81(1) EC)

12. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof

(Art. 81(1) EC)

13. Competition – Agreements, decisions and concerted practices – Proof – Undertaking’s response to the request for information from the Commission – Probative value – Assessment

(Council Regulations No 17, Art. 11, and No 1/2003, Art. 18)

14. 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

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

16. 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 with regard to the burden of proof on the undertaking concerned between incriminating documents and exculpatory documents

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

17. 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)

18. 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)

19. 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)

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

(Council Regulations Nos 17 and 1/2003; Commission Notice 98/C 9/03)

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

(Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)

22. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Turnover taken into consideration

(Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)

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

(Council Regulation No 1/2003)

24. Competition – Fines – Amount – Determination – Possibility to raise the level of fines in order to increase their deterrent effect

(Art. 81 EC)

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

(Art. 81 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 likelihood that the consensus between the undertakings did not extend to the practical arrangements for implementing the price increase or the fact that that increase never actually took place on the market.

(see paras 34-35, 175)

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.

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 36-37, 178)

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 38-41)

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. 42)

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 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.

(see paras 43-44)

6. No provision or any general principle of EU law 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 Article 81 EC and Article 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 cannot therefore be sufficient, in itself, to establish the existence of the infringement, but must be corroborated by other evidence. Nevertheless, the degree of corroboration required 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 a body of consistent evidence corroborated the existence and certain specific aspects of the practices mentioned in that statement, that statement might be sufficient in itself, in such a case, to constitute evidence of other aspects of the Commission’s decision.

Moreover, provided that a document does not manifestly contradict the statement 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 paras 60, 79-81)

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 with the Commission.

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.

(see para. 69)

8. It follows from the 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, because 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 cartel arrangements or the absence of any effect on the market.

(see paras 70-71)

9. 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.

(see para. 78)

10. Given such a complex factual situation, the dual characterisation of anticompetitive conduct as a ‘complex of agreements and/or concerted practices’, in so far as that conduct involved at one and the same time elements to be characterised as ‘agreements’ and elements to be characterised 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. 183)

11. The ne bis in idem principle, which constitutes a general principle of EU law, whose observance the Courts ensure, prohibits the same person from being penalised more than once for the same unlawful conduct in order to protect one and the same legal interest. The application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender and the unity of the legal interest protected.

When the Commission penalises an undertaking for anticompetitive conduct, that principle is in no way breached by the fact that the conduct referred to has already been the subject of an earlier decision of the Commission, since the undertaking was not penalised by that earlier decision, nor was it among the addressees of that decision nor the addressees of the statement of objections adopted in the procedure leading to the adoption of that decision, and that its participation in the unlawful conduct was only referred to in the context of the statement of fact, without being the subject of any legal assessment whatsoever by the Commission.

(see paras 186-188)

12. The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. In this regard, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

(see para. 198)

13. The probative value of a statement given on behalf of the undertaking in reply to the request for information from the Commission under Article 11 of Regulation No 17 and Article 18 of Regulation No 1/2003 carries more weight than that of an employee of the undertaking, whatever his individual experience or opinion.

(see para. 217)

14. 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. 222)

15. 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 following 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. 226)

16. The right of access to the file is a corollary of the principle of respect for the rights of the defence and 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 for its defence, by showing, in particular, that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the decision.

(see paras 236-239)

17. 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.

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 241-246, 249)

18. 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.

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 265-267)

19. 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) of the 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 nevertheless 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.

Within the meaning of the third indent of the second paragraph of Section 1.A of those guidelines, very serious infringements are ‘generally horizontal restrictions such as price cartels and market‑sharing quotas’. Agreements 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. Horizontal price or market sharing agreements may be classified as very serious infringements solely on account of their nature, without the Commission being required to demonstrate an actual impact of the infringement on the market.

Whilst 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 those guidelines that that impact is to be taken into account only where this can be measured.

(see paras 270-272, 275-276, 280-281)

20. Within the framework of Regulation No 17 and of Regulation No 1/2003, 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 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.

The 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 and it is not, moreover, 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 288, 290, 293-294)

21. Under 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, where there are infringements involving a number of undertakings, the Commission may weight the starting amounts to take account of the specific weight of each undertaking by dividing the members of the cartel into groups particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. These guidelines further state that the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without that differentiation being governed by any arithmetic calculation.

In determining the gravity of the infringement, the Commission is not required to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover. However, it may divide them into groups.

A division of the undertakings concerned by categories must, however, comply with the principle of equal treatment, according to which it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment is objectively justified. Moreover, the amount of the fines must, at least, be proportionate in relation to the factors that entered into the assessment of the seriousness of the infringement.

(see paras 298-300)

22. Despite its approximate nature, turnover is regarded as an adequate criterion, in competition law, for assessing the size and the economic power of the undertakings concerned.

With regard to the use of turnover including excise duties for the calculation of the individual basic amounts, it should be emphasised that, in so far as that calculation involved the relative weighting of the other participants in the cartel on that market, the non-inclusion of taxes or excise duties do not alter the Commission’s final conclusion. Only if the Commission had calculated the individual basic amounts of the other parties involved on the basis of turnover not including excise duties could there be a breach of the principle of equal treatment.

(see paras 304, 306)

23. 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, exercising the powers conferred on it 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 concerned.

The length of the first phase of the procedure of 65 months must be regarded, in the absence of further explanation or information from the Commission regarding the measures of inquiry undertaken during that period, 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 316-318, 320, 322, 325)

24. The fact that the Commission has, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 1/2003 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.

(see para. 335)

25. A procedural irregularity, even though it is not capable of resulting in the annulment of a decision adopted by the Commission in respect of an undertaking for an infringement of the competition rules, may justify a reduction of the fine. Failure to adjudicate within a reasonable time can justify the Commission’s decision to reduce, in equity, the amount of a fine, since the possibility of granting such a reduction falls within the scope of the Commission’s powers.

(see paras 337-338)

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‑235/07,

Bavaria NV, established in Lieshout (Netherlands), represented initially by O. Brouwer, D. Mes and A. Stoffer, and subsequently by O. Brouwer, A. Stoffer and P. Schepens, lawyers,

applicant,

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 applicant,

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 24 March 2010,

gives the following

Judgment

Facts

1 The applicant, Bavaria NV, is a company whose business is to produce and market beer and soft drinks.

2 It is one of the four main operators on the Dutch beer market. The other leading brewers on that market are, first, the Heineken group (‘Heineken’), which is managed by Heineken NV and whose production is managed by the subsidiary Heineken Nederland BV, second, 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, and, third, the Grolsch group (‘Grolsch’), which is managed by Koninklijke Grolsch NV.

3 The applicant 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 applicant and of the other undertakings concerned. In addition, other requests for further information were sent to the applicant between 2001 and 2005.

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

8 By letters of 7 March and 8 May 2006, additional documents were brought to the applicant’s attention by the Commission. These included requests for information sent to InBev and the replies to those requests, and an internal memo from Heineken.

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 applicant by letter of 24 April 2007.

The contested decision

The infringement at issue

10 Article 1 of the contested decision states that the applicant and InBev NV, InBev Nederland, Heineken NV, Heineken Nederland and Koninklijke Grolsch 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 the applicant met and discussed the price increase for private label beer (recital 104 to the contested decision). Furthermore, according to the Commission, Heineken and the applicant 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 in July 1999 between Heineken 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 the applicant 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 (recitals 105, 222 to 229 and 232 to 236 to the contested decision).

The fine imposed on the applicant

16 Article 3(c) of the contested decision imposes on the applicant a fine of EUR 22 850 000.

17 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 applicant was determined according to the gravity and duration of the infringement (recital 437 to the contested decision).

18 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 was not taken into account in the present case, as it was impossible to measure (recital 452 to the contested decision).

19 Furthermore, the Commission applied differential treatment to the applicant in order to take account of its effective economic capacity and its individual weight in the anti-competitive conduct established. To that end, the Commission used the sales figures for beer sold by the applicant in the Netherlands in 1998, the last full calendar year of the infringement. On that basis, the applicant was placed in the third of three categories, in respect of which the starting amount of the fine was EUR 17 million (recitals 462 and 464 to the contested decision).

20 In addition, as the applicant 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 469 to the contested decision). The basic amount was therefore fixed at EUR 22 950 000 (recital 470 to the contested decision).

21 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

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

23 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.

24 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.

25 The parties presented oral argument and replied to the questions put by the Court at the hearing on 24 March 2010.

26 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.

27 The applicant claims that the Court should:

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

– in the alternative, reduce the fine imposed on the applicant;

– order the Commission to pay the costs.

28 The Commission contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

Law

29 In support of its action, the applicant relies on six pleas, alleging, first, a breach of the principle of sound administration, second, an infringement of Article 81 EC, disregard for the presumption of innocence, and a breach of the principle of legality and of the obligation to state reasons, third, an error of law and of fact in the determination of the duration of the infringement, fourth, an infringement of Article 23 of Regulation No 1/2003 and of the Guidelines and breaches of the principle of equal treatment and the principle of proportionality in determining the amount of the fine, fifth, a breach of the reasonable time principle and, sixth, a breach of essential procedural requirements, of the principle of sound administration and of the rights of the defence, consisting in the refusal to grant access to the replies of other parties involved to the statement of objections and to a document forming part of the file.

30 The Court considers that the second and third pleas, which seek, in essence, to challenge the finding of the infringement, should be examined first, then the first and sixth pleas, which allege procedural defects, and lastly, the fourth and fifth pleas, which concern, respectively, the determination of the amount of the fine and the length of the administrative procedure.

The second plea, alleging an infringement of Article 81 EC, disregard for the presumption of innocence, and a breach of the principle of legality and of the obligation to state reasons

Arguments of the parties

31 The applicant essentially claims that the Commission has misinterpreted and misapplied the concepts of ‘agreement’, ‘concerted practice’ and ‘single and continuous infringement’ and has erred in law and in the assessment of the facts in respect of the finding of the infringement in both the on-trade sector and the off‑trade sector, including the private label beer segment.

32 The Commission contests the applicant’s arguments.

Findings of the Court

33 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.

34 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).

35 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 34 above, paragraphs 151 to 157 and 206).

36 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).

37 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 36 above, paragraphs 116 and 117).

38 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 36 above, paragraph 86).

39 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).

40 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).

41 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).

42 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 40 above, paragraph 187).

43 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).

44 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 36 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).

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

– The statement by InBev

46 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’).

47 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).

48 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).

49 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).

50 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).

51 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).

52 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.

53 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).

54 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).

55 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).

56 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 brewer’s 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).

57 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 a hotel 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).

58 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).

59 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).

60 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 40 above, paragraph 192 and the case-law cited).

61 In the present case, the applicant does 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 does it contest that it was represented at most of those meetings or that, at the meetings, discussions were held on price levels on the Dutch market and on the application of discounts to customers in the on-trade sector.

62 In those circumstances, the Commission was entitled to find that the meetings mentioned in the statement by InBev took place and that representatives of the applicant actually participated in at least some of those meetings.

63 The applicant nevertheless disputes that the discussions which were held at the meetings in question led to the conclusion of an agreement or an undertaking to engage in an anti-competitive concerted practice. It claims that those meetings 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, the applicant contests the reliability of the statement by InBev, claiming that it is vague, incoherent and inherently contradictory.

64 In particular, as regards the contradictory character of the statement by InBev, the applicant points out that it contains a number of exculpatory statements.

65 First, there are passages in the supplementary statement by InBev of 3 February 2000 which state: ‘“[W]e talked above all to give each other the impression that we would remain calm on the market. There was little or no discussion of sliding scales or points of sale. In fact, everyone was taking everyone else for an idiot.” In recent years, these meetings increasingly lost their substance and the consultation took on a more vague character’ (recital 46 to the contested decision).

66 Second, the applicant refers to certain passages of the statements by managers from InBev according to which: ‘there was no agreement for the food sector’; ‘price increases were not, however, applied under agreements’; ‘I am not aware of agreements in the “private labels” sector’; ‘that meeting did not have much substance. It was more a pleasant meeting without a specific agenda. General comments were made about discounts. I had the impression that there had already, for some years, been a sort of sliding scale system or a rule on discounts, but that was never explicitly stated. We only spoke about overall discount levels in very general terms, which was an opportunity to point out certain incidents’; ‘[Interbrew] did not participate in any agreement on prices’; ‘nor was there any concerted action. We acted completely independently and, when there were price increases for all beers in 1999, we increased A brands (after Bavaria and Grolsch had done so a few months previously) and there was strong resistance from our customers in favour of private labels ... we therefore acted perfectly lawfully’.

67 The applicant claims that the abovementioned statements are incompatible with the Commission’s conclusions as to the existence of an infringement of Article 81 EC. According to the applicant, it follows that the price increases applied in the off-trade sector were not agreed or coordinated, that Interbrew determined its selling prices completely independently, that the Dutch brewers have always been in healthy competition, and that there has been no agreement between the brewers on reductions granted to the on-trade sector.

68 It should first be stated that the inferences made by the applicant 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.

69 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 40 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).

70 Second, as regards the allegedly contradictory character of the statement by InBev, in that it purportedly contains 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 36 above, paragraphs 163 to 166, and Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 29).

71 Thus, because 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 cartel arrangements or the absence of any effect on the market.

72 As regards the purported information 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 applicant, read in context, certainly do not rule out the existence of an agreement or of a concerted practice in the sectors concerned.

73 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.’

74 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.

75 As regards the alleged absence of an agreement and of respect for an agreement in the on-trade sector, the passages of the supplementary statement by InBev of 3 February 2000 and of the statements by the managers from InBev, cited in paragraphs 65 and 66 above, clearly do not have the effect of ruling out the existence of an agreement on the discounts granted to customers in that sector. In pointing out that the discussions were general in nature and rarely related to sliding scales or specific points of sale, those passages concern the level of detail of the discussions, without refuting the existence of an agreement within the meaning of Article 81 EC. They cannot therefore be considered to refute the information given in the statement by InBev to the effect that ‘[t]here was an agreement in principle on setting maximum discounts by volume for the on-trade sector’ (recital 48 to the contested decision).

76 In the light of the foregoing, the applicant’s arguments concerning the allegedly vague and contradictory character of the statement by InBev and, consequently, the supposedly selective way in which the Commission used that statement are not valid.

77 Lastly, as regards the general assessment of the reliability of the statement by InBev, the appropriate view, contrary to the applicant’s 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 (see, to that effect, 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 40 above, paragraph 206).

78 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).

79 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 40 above, paragraph 219).

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

81 Nevertheless, in view of the reliability of the InBev statement, 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 40 above, paragraph 220 and the case‑law cited).

82 In the light of the foregoing, it is necessary to examine the applicant’s 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

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

84 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]’.

85 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.

86 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 /’.

87 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).

88 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.’

89 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).

90 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’.

91 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).

92 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).

93 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’.

94 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).

95 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’.

96 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).

97 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’.

98 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).

99 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 ’.

100 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).

101 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’.

102 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).

103 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.’.

104 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).

105 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).

106 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).

107 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.’

108 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).

109 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’.

110 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).

111 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).

112 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 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, failed to be actually implemented (recital 213 to the contested decision).

113 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 to the contested decision);

– meeting on 12 May 1997: mention was made of the ‘price increase’ and ‘private labels as a sword of Damocles ... psychological pressure from Grolsch and Heineken in particular to increase prices of private label beer’ (footnote 493 to the contested decision);

– meeting on 19 June 1997: there was discussion of ‘the conduct to be adopted in the private labels segment and, in this connection, Interbrew’s position vis-à-vis Martens (regarded as an unwelcome guest in the world of Dutch beer[)]’ (footnote 494 to the contested decision);

– meeting on 8 September 1997: mention was made of ‘the situation on the private labels market in the Netherlands and the fact that Bavaria had taken a customer from Interbrew ... lower limit offer made to [customer] ... Bavaria changing the status quo ...’ (footnote 495 to the contested decision).

114 The Commission interprets these documents as proof that the bilateral consultations between Bavaria and InBev made it possible to maintain an ‘armed peace’ or a ‘non-aggression pact’ as regards private label beer (recital 223 to the contested decision).

115 In recital 227 to the contested decision, the Commission mentions the letter dated 26 September 1997, sent by an exports manager for Interbrew Nederland to an exports manager at Interbrew’s head office regarding ‘beer sales in Germany and private labels’:

‘I recently spoke about this with our main competitor in the Netherlands and on that occasion I learnt that they were to meet ... on whether or not to increase the volume of TIP beer for 1998. I asked about the price level towards which they expected to work and he confirmed to me exactly the same price, minus a contribution earmarked for the head office of ..., and the fact that he would accept a volume of around 200 000 hl at that price.’

116 According to the Commission, it is clear that Interbrew requested and obtained from Bavaria detailed information on prices and volumes relating to the possible supply, by Bavaria, of private label beer to a major German retail chain. The Commission takes the view that this confirms the statement by InBev according to which Interbrew and Bavaria exchanged information on the price levels offered to customers of private label beer. In addition, the Commission asserts that this fact was acknowledged by InBev in a letter dated 21 February 2006 (recital 228 to the contested decision).

117 In recital 234 to the contested decision the Commission mentions the following statement by the Haacht brewery regarding the meeting held on 14 or 15 June 1998 between Bavaria, Interbrew Nederland and the Belgian brewers Interbrew Belgique, Alken‑Maes, Haacht and Martens:

‘In the course of that meeting, the Dutch breweries were told about the content of the exchange of information between the Belgian participants. The Dutch breweries consented to an exchange of information on volumes, types of packaging, the length of contracts and possible renewal dates, and customers. With regard to prices, the participants agreed in principle not to exchange information on this subject ...

The participants [in] the meeting considered that a neutral party should be given the job of centralising the exchange of information. This request was made because the parties present on the Netherlands market did not trust the other parties. Haacht was invited to centralise the information since it was not active on the Netherlands market.’

118 The Commission takes the view that, on this point, that statement confirms the statement by InBev (recital 235 to the contested decision).

119 In recital 236 to the contested decision, the Commission mentions the handwritten notes from the abovementioned meeting held on 14 or 15 June 1998, which were discovered in the office of the secretary of a chair of Bavaria’s management board:

‘Martens → nothing has ever taken shape in the Netherlands

→ bottom – market – price breaker

|→ price offers are made

Interbrew Nederland – Martens -> offer made to a major private label customer

...

7.68 [circled]

Martens – “price drop Belgium”

now NL → ...

Interbrew Belgique has made the first move concerning P[rivate] L[abels]

only for ...

Pilsener ...

/ \ / \

multiple single

... – “decided” |→ at Interbrew

CAT I+II’.

120 According to the Commission, these notes confirm that Interbrew Belgique took the initiative at a meeting on private label beer during which it decided that the contract with a retail purchasing organisation ‘would go to Interbrew in the Netherlands’ (recital 237 to the contested decision).

121 As regards this latter meeting, the Commission also mentions the following statement by an off-trade manager for InBev, submitted by InBev on 21 February 2006 in response to a request for information (recital 238 to the contested decision):

‘At one point ..., Mr ... from ... disclosed a low price which Martens had offered him. He told me that he had obtained a price of NLG 0.32 per bottle. This corresponds to the amount of NLG 7.68 per crate of 24 bottles mentioned in the notes by Mr … [manager for Bavaria]. During those discussions, which took place from April to the beginning of June 1998, I suggested to him moving to category II and thereby benefiting from lower excise duties. Eventually, at the beginning of June 1998, we concluded an agreement with ... on the supply of a new ... category II beer ... Following the reduction in excise duties as a result of the move to a category II beer, we were able to propose an amount of NLG 6.36 (including the excise reduction of NLG 0.84), thus fending off the offer from Martens.

...

At the time of the meeting held on 14 or 15 June 1998, ... Interbrew had reached agreement with ... on supplies of category I ... and category II beer. In the course of that meeting, I reported on the discussions and on the agreement reached with ... for two reasons. Firstly, I wanted to confront Martens with the offer which it had made to ..., since it had always denied having made price offers in the Netherlands. Secondly, I was keen to inform the other participants that they should no longer make offers to ..., in view of the agreement concluded between Interbrew and ... . Line n of the [document referred to in recital 236 to the contested decision] bears witness to my communication relating to the conclusion of the contract for the supply of category I and category II beers between ... and Interbrew. The existence of that agreement ... is evident from the fax of 24 June 1998.’

122 In recital 240 to the contested decision, the Commission mentions a statement by the Belgian brewer Haacht regarding the second Belgian-Dutch meeting held on 7 July 1998, according to which:

‘This was the last meeting which was organised between the parties. At the meeting, Haacht circulated the information collected on the Netherlands market.

The parties then changed subjects and discussed certain less important points, but the representative [of] Haacht did not take part in that discussion. Whatever the case, no important information was exchanged on these subjects. This meeting gave the impression of not producing anything concrete.’

123 According to the Commission, the statement by an off-trade manager for Interbrew confirmed the statement by Haacht according to which this was the last Belgian-Dutch meeting. The Commission takes the view that the decision to put an end to these meetings was taken for a specific reason, namely the fear that the Dutch competition authority would make an incursion into one or more breweries, which is confirmed by the statement by InBev (recital 241 to the contested decision).

124 In recital 248 to the contested decision, the Commission mentions a Heineken internal statement according to which ‘the extremely low prices currently applied by the Belgian brewery Martens ... are frustrating the policy of taking the bottom of the market to a higher price level’.

125 Lastly, in recital 249 to the contested decision, the Commission mentions the statement made during its inspection on 23 March 2000 and signed by a managing director of Grolsche Bierbrouwerij Nederland, who became chair of the board of directors at Koninklijke Grolsch:

‘He took the document ... entitled “Price scenarios based on a net increase in wholesale prices of NLG 2.00 per hl”, which includes the annotation “CBK – Fie – always take away” to the meetings of the CBK Working Party on finance. He used that document to draw the attention of Interbrew and Bavaria (the producers of private label beer in the Netherlands) on price determination, in his view unjustifiable, for private label beer (less than 10 florins per crate).’

126 In the same recital to the contested decision, the Commission also mentions the following statement by a managing director of Heineken Nederland:

‘I had already been present at a meeting of the CBK where others spoke about price determination for private labels. Such comments will have been made to express a concern. I did not react because in principle Heineken is not involved in the production of private labels.’

127 The Commission infers from the passages cited in recitals 248 and 249 to the contested decision that the producers of private label beer (Interbrew and Bavaria) revealed their price strategy to Heineken and to Grolsch, which are not active in that sector (recital 248 to the contested decision). It concludes that the bilateral discussions between Interbrew and Bavaria seeking to increase the price of private label beer formed part of the general discussions held between the four brewers (recital 252 to the contested decision).

128 It should be stated that the evidence set out above corroborates the statement by InBev and justifies the finding that representatives of Heineken, Grolsch, Interbrew and Bavaria met regularly in a cycle of informal meetings known as the ‘Catherijne consultation’ or ‘Working Party on agenda’, whose composition varied (statement by InBev cited in recital 45 to the contested decision; other evidence examined in recitals 65 to 222 to the contested decision). The 18 meetings mentioned in the contested decision, which are part of that cycle, took place on 27 February 1996, 19 June 1996, 8 October 1996, 8 January 1997, 1 May 1997, 2 September 1997, 16 December 1997, 17 December 1997, 12 March 1998, 9 April 1998, 3 July 1998, 15 December 1998, 8 January 1999, 4 March 1999, 10 May 1999, 11 August 1999, 19 August 1999 and 3 November 1999.

129 As far as the content of the discussions held in those meetings is concerned, the abovementioned evidence corroborates the statement by InBev and proves the following:

– with regard to the off-trade sector:

– the four brewers were discussing prices (statement by InBev cited in recital 51 and other evidence cited in recitals 76, 129, 156, 174, 193, 212 and 213 to the contested decision) and increases in the price of beer in the Netherlands (statement by InBev cited in recital 51; other evidence cited in recitals 76, 89, 117 and 179 to the contested decision);

– discussions on prices were also pursued through bilateral contacts, including between Grolsch and Heineken in July 1999 (document cited in recitals 212 and 213 to the contested decision);

– concrete price proposals were discussed (Interbrew internal letter mentioned in recital 89 to the contested decision) and information exchanged was sometimes quite detailed (documents mentioned in recitals 129 and 174 to the contested decision);

– in 1997 and 1998 there was a consensus between the brewers on implementing a price increase before or during 1998 (documents mentioned in recitals 89, 174 and 179 to the contested decision);

– the producers of ‘A brand’ beer (Heineken and Grolsch), unlike the producers of ‘B brands’ (private label beer) (Interbrew and Bavaria), which were opposed, insisted that the price increase be implemented ‘in two phases’, first for B brands and then for A brands, and that the rate of increase be differentiated between A brands and B brands (statement by InBev cited in recital 53; other evidence mentioned in recitals 76, 89, 100, 117 and 193 to the contested decision);

– Bavaria announced (probably at the meeting held on 12 March 1998) its intention to increase its prices (evidence mentioned in recitals 129 and 179 and statement by InBev cited in recital 51 to the contested decision). The other brewers would probably follow Bavaria by increasing their prices subsequently (statement by InBev cited in recital 51 to the contested decision);

– as far as the monitoring mechanism was concerned, it was agreed that the increases made by Bavaria should be demonstrable in the figures from the supermarkets’ database compiled by AC Nielsen (documents mentioned in recitals 129 and 179 to the contested decision);

– there is no evidence that the price increase planned for 1998 took place;

– in the consultations on prices, the brewers discussed the situation of certain specific supermarkets (handwritten notes mentioned in recitals 76 and 156 to the contested decision);

– during discussions, the participants indicated specific price figures (documents mentioned in recitals 76, 89, 117, 129 and 174 to the contested decision);

– with regard to private label beer:

– from 1995, the two Dutch producers of private label beer (Interbrew and Bavaria), on several occasions, expressed their concerns over the plans by the Belgian brewer Martens to penetrate the Dutch market in that sector (statement by InBev cited in recital 55; other evidence cited in recitals 224, 236, 238 and 248 to the contested decision);

– these concerns were discussed in the bilateral consultations between Bavaria and InBev (statement by InBev cited in recital 52; Interbrew internal letter cited in recital 227 to the contested decision) and five bilateral meetings (on 8 March 1995, in the second half of March 1997, on 12 May 1997, 19 June 1997 and 8 September 1997) on the subject of this problem (documents mentioned in recital 224 to the contested decision);

– two ‘Belgian-Dutch’ meetings took place in Breda