2003/569/EC: Commission Decision of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (notified under document number C(2001) 3915)
Date: 2001-12-05
Institutions: European Commission
Subjects: application of EU law, beer, competition law, inter-company agreement, restrictive trade practice

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Official Journal of the European Union

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 5 December 2001

relating to a proceeding under Article 81 of the EC Treaty

(Case IV/37.614/F3 PO/Interbrew and Alken-Maes)

(notified under document number C(2001) 3915)

(Only the Dutch and French versions are authentic)

(2003/569/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Whereas:

Having regard to the Treaty establishing the European Com-
munity,

Having regard to Council Regulation No 17 of 6 February
1962, the first Regulation implementing Articles 81 and 82 of
the Treaty (1), as last amended by Regulation (EC) No 1/
2003 (2), and in particular Article 15(2) thereof,

Having regard to the Commission’s decision to initiate proceed-
ings in this case, taken on 29 September 2000,

(1)

Having given the undertakings concerned the opportunity of
being heard on the objections raised by the Commission, in
accordance with Article 19(1) of Regulation No 17 and
Article 2 of Commission Regulation (EC) No 2842/98 (3),

Having consulted the Advisory Committee on Restrictive
Practices and Dominant Positions,

Having regard to the final report of the Hearing Officer in this
case (*),

1.

INTRODUCTION

This case concerns long-term and complex restrictive
agreements relating to the Belgian market in beer for
consumption both on the premises (‘the on-trade’) and
off the premises (‘the off-trade’).
Interbrew NV and
Alken-Maes NV,
the largest and the second-largest
suppliers to the Belgian beer market, consulted together
and concluded agreements concerning a general non-
aggression pact; prices and promotions in the off-trade;
customer sharing in the on-trade (both the ‘traditional’
on-trade and national customers); the restriction of
investment and advertising in the on-trade; and a new
price structure for the on-trade and the off-trade. They
shared information about sales to the on-trade and the
off-trade. They sought to take some of these measures
further through the Confederation of Belgian Brewers.

(*) OJ C 187, 7.8.2003.
( 1) OJ 13, 21.2.1962, p. 204/62.
( 2) OJ L 1, 4.1.2003, p. 1.
( 3) OJ L 354, 30.12.1998, p. 18.

(2)

There was separate consultation between Interbrew NV,
Alken-Maes NV and the breweries NV Brouwerij Haacht
and Martens NV concerning private-label beer, in par-

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(3)

(4)

(5)

(6)

ticular with regard to customers and prices, and an
exchange of information regarding private-label beer
between those four brewers.

(7)

2. THE BELGIAN BREWING INDUSTRY

2.1. The market for beer in Belgium

2.1.1.

Supply

The number of firms engaged in brewing in Belgium
has been falling slowly. In 1991 there were 76 brewers
belonging to the Confederation of Belgian Brewers (Con-
federatie der Brouwerijen van België/Confédération des
Brasseries de Belgique or ‘CBB’). At the beginning of 2000
the figure was 68 (4). Some of these brewers own more
than one brewery each.

Although the number of breweries operating in Belgium
is relatively high, brewing is in fact concentrated in the
hands of a few firms. In 1998 the five biggest brewers in
Belgium accounted for more than 80 % of total output. In
the same year the two biggest brewers, Interbrew NV and
Alken-Maes NV, together brewed about 70 % of the total
volume of beer sold in Belgium (5).

‘Pilsener’ or
As well as the lager beer known as ‘Pils’,
‘Pilsner’, there is a great variety of speciality beers brewed
in Belgium, including abbey and Trappist beers, gueuze
and kriek, whitebeers, ales, seasonal beers and many local
beers (6).

About 60 % of total beer consumption takes place on the
premises in one of approximately 50 000 outlets; this
channel is hereinafter referred to as ‘the on-trade’, and in
Belgium is usually known in both Dutch and French as
the ‘horeca’ sector, an acronym for ‘hotels, restaurants
and cafés’. Beer is distributed to such outlets mainly by
wholesalers specialising in the on-trade. The number of
beer wholesalers in Belgium has been falling in recent
years as a result of mergers, takeovers and closures, but
the number in operation is still relatively large. Estimates
range from 1 200 (10) to 1 800 (11). Some volumes are
also distributed direct to the trade by the brewers them-
selves.

(8)

(9)

The remaining 40 % or so is sold by food retailers for
consumption off the premises; this is hereinafter referred
to as ‘the off-trade’, and in Belgium is usually known as
the ‘food’ or ‘retail’ trade. As well as the brewers’ brands,
an increasingly important role is played by retailers’ own
brands, known in Belgium by the English term ‘private-
labels’; this is so especially in the Pils segment. In 1998
private-label beer amounted to 550 000 hl, accounting
for 5,5 % of total Belgian consumption (12).

Thus the main developments in Belgium are: gradually
declining demand; a slow decline in the number of brew-
ers, wholesalers and drinks outlets; a growth in the
importance of off-trade sales as compared with sales
through the on-trade; and within the off-trade, a growth
in the importance of private-label beer.

2.1.2. Demand

2.1.3.

Price regulation

Total beer consumption in Belgium has been falling slow-
ly; in 1998 it was slightly over 10 million hectolitres, an
average drop of 1,6 % per annum fromthe 1993 figure (7).
About two thirds of total consumption consists of Pils. Of
the speciality beers that make up the remainder, the most
important are amber ale, abbey beer and white beer, each
of whichhas a share of total consumption of 5 %to 6 % (8).
Between 1993 and 1998 production of beer in Belgium
declined by an average 0,4 % per annum (9).

( 4) CBB reply to request for information, 1.2.2000 (doc. 37614

02686-02701).

( 5) CBB

reply

request
(doc. 37614 06563-06737).

to

for

information,

1.2.2000

( 6) The CBB distinguishes Pils, amber ales, white beers, abbey beers,
Trappist beers, table beers, gueuze and fruit beers, British-style
ales, premium lagers, non-alcoholic and low-alcohol beers, strong
golden ales, regional beers, and sour beers. See the website http://
www.beerparadise.be.

( 7) The Beer Service, Annual Report 1999, Belgium, April 1999,
Canadean Ltd (doc. 37614-09997); a table showing annual beer
consumption in Belgium from 1993 to 1998 can be found in
Annex I.

( 8) CBB reply to request for information, 1.2.2000 (doc. 37614

06563-06737).

( 9) The Beer Service, Annual Report 1999, Belgium, April 1999,

Canadean Ltd (doc. 37614 09987).

(10) Until 1 May 1993 the Belgian beer trade was subject to a
Ministerial Order requiring price increases to be submit-
ted to the competent minister. Brewers had to obtain the
authorisation of the minister for any increase in the price
of beer; they could applyeither individuallyor collectively
through a trade association (13). Applications for price
increases were in fact submitted on the brewers’ behalf
by the CBB. The application had to provide a detailed
statement of the reasons for the increase sought, giving
figures, and a detailed list of existing prices and certain
rebates. The annual accounts of the firms concerned also
had to be attached. The CBB last submitted an application

(10) The Beer Service, Annual Report 1999, Belgium, April 1999,

(11) CBB

Canadean Ltd (doc. 37614 09968).
for
to

request

reply
(doc. 37614 02685).

information,

1.2.2000

(12) The Beer Service, Annual Report 1999, Belgium, April 1999,

Canadean Ltd (doc. 37614 09958).

(13) Article 3 of the Order stated that this requirement did not apply
to producers with an annual turnover of less than BEF 50 million,
or in respect of certain speciality beers such as sour beers and
abbey and Trappist beers.

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for a price increase on 23 December 1992. The minister
allowed that increase on 6 February 1993, subject to the
condition that the system of rebates remained unchanged
and that no further price increases were carried out in
1993.

2.2. Brewers

merged Alken-Maes, and replaced Alken-Maes’s manage-
ment;
in 1994 BSN changed its name to Groupe
Danone SA (‘Danone’). The brewer Kronenbourg, which
operates in France, also belonged to Danone. In the year
2000 Danone sold its beer operations to the UK Scottish
and Newcastle group. In 2000 Danone’s worldwide turn-
over was EUR 14 287 million. In 1999 its turnover in
beer in Belgium was EUR [>100 million] (15).

(11) Annex II shows the market shares of the four Belgian
brewers concerned for the period 1992 to 98 (in volume,
rounded to whole figures). Market shares are given for the
market as a whole and for the Pils segment. A distinction
is also made on the basis of the distribution channel,
between the on-trade and the off-trade.

2.2.3. Martens

2.2.1.

Interbrew

(12)

Interbrew NV (‘Interbrew’) is by far the largest Belgian
brewer. Its main brands in Belgium are Jupiler and Stella
Artois (Pils), Hoegaarden (white beer) and Leffe (abbey
beer). All four of these are among the ten biggest selling
brands on the Belgian market. Interbrew also has breweri-
es in many other countries, including, in the European
Union, the Netherlands, the United Kingdom and France.
Outside the European Union Interbrew operates in Cana-
da, where it took over the Canadian brewer Labatt in
1995, and in Eastern Europe and Asia. Interbrew is one of
the ten largest brewers in the world. It has had a stock
exchange listing since 1 December 2000. In the year 2000
its worldwide turnover was EUR 8 605 million. In the
same year its total turnover in beer in Belgium was
EUR [>500 million] (14), of which EUR [<5 million]; was
derived from private-label beer.

2.2.2. Danone and its subsidiary Alken-Maes

(15) Martens NV (‘Martens’) produces mainly private-label Pils
for large retail chains such as Aldi. It brews its own beer
under the Sezoens brand. It also imports the low-price
Karlsberg brand from Germany (not to be confused with
the Danish Carlsberg brand). In the year 2000 Martens’
worldwide turnover was EUR 33 598 507. Of this figure,
sales of beer in Belgium accounted for EUR [<50 million].
Martens’ turnover from private-label beer in Belgium was
EUR [>5 million] in 2000.

2.2.4. Haacht

(16) NV Brouwerij Haacht (‘Haacht’) is essentially a Pils pro-
ducer. Its main brand is Primus. In the year 2000 its
worldwide turnover was EUR 69 416 371, of which
EUR [<50 million] was accounted for by beer sold in
Belgium. Haacht’s turnover from private-label beer in
Belgium was EUR [>5 million] in 2000.

(13) Brouwerijen Alken-Maes NV (‘Alken-Maes’) is the number
two on the Belgian market; its brands include Maes and
Cristal (Pils), Grimbergen (abbey beer), Ciney (a regional
beer) and Brugs Tarwebier (white beer). In the year 2000
Alken-Maes’ worldwide
to
EUR 120,78 million. In the same year its turnover in
beer in Belgium totalled EUR [>100 million]. In 2000, a
turnover of EUR [<5 million] was achieved for private-
label beer in Belgium.

amounted

turnover

(14) Alken-Maes was set up in 1988 as a result of a merger
between two brewers, namely Alken-Kronenbourg,
which had formerly belonged to the French BSN group,
and Maes. In 1992 BSN acquired a majority stake in the

2.2.5. The trade association CBB

(17) All of the brewers listed above are members of the trade
association, the CBB. The CBB represents the interests of
its members. Day-to-day business is handled by a man-
ager. Its activities are distributed between working parties
and committees on which its members are represented.

( 14)

Information indicated in square brackets is considered to be a
business secret by the party concerned.

(15) As Danone sold its beer operations in the middle of the year
2000, the figures for 1999 give a better picture of its annual
turnover in beer than those for 2000.

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2.3. Trade between Member States

(18)

In assessing the available statistics, one factor must be
borne in mind. According to the market research bureau
Canadean, it is difficult to discern the real pattern of
international trade from the official statistics published
by the Belgian central bank, the Nationale Bank/Banque
for example,
Nationale. At the beginning of 1995,
Interbrew took over the Dutch Oranjeboom brewery.
Since then, in order to maximise production efficiencies,
Interbrew has exported some volumes of beer in bulk
from Belgium to the Netherlands for packaging, and reim-
ported the packaged goods into Belgium for consump-
tion. For want of a better alternative, however, Canadean
nevertheless uses the central bank figures (16). In response
to enquiries, the CBB has likewise referred to the central
bank statistics, which are also published in its newsletter
Het Brouwersblad/Le Journal du Brasseur (17). Thus the stat-
istics given below are not to be understood as a precise
measurement — no precise measurement is available —
but only as indicative.

(19) According to Canadean, between 1993 and 1998 imports
of beer into Belgium rose from 454 000 hl to 916 000 hl,
which is about 9 % of total consumption. In 1998 some-
thing over 80 % of this came from other Member States.
The countries from which most was imported were the
Netherlands, Denmark, the United Kingdom, Germany
and France (18). Interbrew states that over the period 1993
to 98 imports into Belgium rose from 337 453 hl to
731 202 hl. A study carried out for the CBB in 1994 by
the consultancy firm Arthur D. Little estimates exports
from France to Belgium at 60 000 hl. The terms of refer-
ence of that study make it clear that there were concerns
within the CBB at the time regarding parallel imports (19).
Parallel importing occurs, for example, where a Belgian
wholesaler buys Pils under Interbrew’s Jupiler brand from
Interbrew’s French establishment, and then sells it in
Belgium. The Arthur D. Little report also shows that
in 1994 ex-brewery prices were substantially higher in
Belgium than in France (20).

( 16) The Beer Service, Annual Report 1999, Belgium, April 1999,

(20) There are a number of documents dating from 1993
which describe the impact of parallel
imports on
Interbrew, and the direct link between price differences in
Belgium and France and these imports. The possible effect
is stated to be a ‘destabilisation of the entire Belgian beer
market’. It is also said that ‘price setting, rebate policy ...
is not a domestic question, but increasingly has to be
discussed on an international basis.’ (21)

(21) Belgium is a major exporter of beer. Between 1993 and
1998 total exports rose from 3,6 million hl to over
4,8 million hl per annum. Over 90 % of this was exported
to other Member States. The countries to which most was
exported were France, the Netherlands, Germany, Italy
and the United Kingdom (22).

3. PROCEDURE

(22) On 26 and 27 October 1999 inspections were carried out
under Article 14(3) of Regulation No 17 at the offices of
Alken-Maes in Waarloos and the CBB in Brussels.

(23) On 11 November 1999 requests for information were
sent under Article 11 of Regulation No 17 to Interbrew,
Alken-Maes and the CBB. The Commission had already
taken copies of documents in the course of a separate
proceeding, during an inspection it carried out at
Interbrew’s premises in Leuven on 13 and 14 July 1999,
and Interbrew was now specifically asked to produce
certain documents to the Commission afresh, in accord-
ance with the established case law of the Court of Justice
of the European Communities (23). These documents con-
tained information which led to the inspections carried
out in October 1999.

(24) The replies of Alken-Maes, Interbrew and the CBB were
received on 10 December, 23 December and 24 Decem-
ber 1999 respectively.

(25) On 27 December 1999 Alken-Maes declared that it was
invoking the Commission notice on the non-imposition
or reduction of fines in cartel cases (24).

( 17) CBB

Canadean Ltd. (doc. 3714 09954).
for
to

request
(doc. 37614 02683, 02720).

reply

information,

1.2.2000

37614 8815-8820). Original Dutch.

(22) The Beer Service, Annual Report 1999, Belgium, April 1999,

(21) Inspection at the offices of Interbrew, document MV15 (doc.

( 18) The Beer Service, Annual Report 1999, Belgium, April 1999,

Canadean Ltd (doc. 37614 09992).

Canadean Ltd (doc. 37614 09986, 09988).

( 19) Annex 23 to Alken-Maes’ reply to the request for information,
10.12.1999 (doc. 37614 01862-01925); inspection at the offices
of the CBB, document ROK16 (doc. 37614 01268-01272).
( 20) Annex B9 to Interbrew’s reply to the request for information,

(23) Judgments of the Court of Justice in Case 85/87 Dow Benelux v
Commission (1989) ECR 3137, paragraphs 19 and 20, and Case
C-67/91 Dirección General de Defensa de la Competencia v Asociación
(1992) ECR I-4785, para-
Española
graphs 39 et seq.

de Banca

Privada

22.12.1999 (doc. 37614 02062-02063).

(24) OJ C 207, 18.7.1996, p. 4.

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(26) On 10 January 2000 a request for information was sent
to the Belgian Ministry of Economic Affairs. The Ministry
replied by letter of 4 February.

(34)

In addition to the inspections and correspondence
described above, a number of meetings took place in
the course of the investigation between members of the
Directorate-General for Competition and representatives
of Interbrew, Alken-Maes and the CBB.

(27) On 12 January 2000 a supplementary request for infor-
mation was sent tothe CBB under Article 11 of Regulation
No 17. The CBB supplied the information requested by
letter on 1 February.

(28)

In letters of 14 and 19 January 2000 Interbrew supplied
information supplementing its letter of 23 December
1999. In the light of this supplementary information the
Commission sent an informal supplementary request for
information to Interbrew by fax on 21 January. Interbrew
replied by letter of 2 February. Interbrew again sent
additional information by letters dated 8 and 28 February.

(29) On 29 February 2000 Interbrew submitted a statement
relating to the Belgian market. As Alken-Maes had already
done, Interbrew sent this statement to the Commission
invoking the Commission notice on the non-imposition
or reduction of fines in cartel cases (25).

(30) By letter dated 7 March 2000 Alken-Maes supplemented

and clarified its statement of 27 December.

(35) On 29 September 2000 the Commission initiated pro-
ceedings in this case and approved a statement of objec-
tions addressed to the undertakings who are likewise
addressees of the present Decision. All of the parties
submitted written observations on the Commission’s
objections. None requested a hearing, and accordingly no
hearing took place.

(36) On 21 December 2000 Interbrew supplied two further
documents to complete the file on the case; they con-
cerned two agreements with Alken-Maes concluded in
connection with the other bilateral agreements between
Interbrew and Alken-Maes. Alken-Maes and Danone were
given the opportunity to comment on this letter from
Interbrew and its annexes.

4. DESCRIPTION OF THE INFRINGEMENTS

4.1. Preliminary observation: the written evidence

(37) The account of the facts set out below is based on the
evidence assembled from the information gathered at the
inspections described above, from the replies to requests
for information, and from the information supplied vol-
untarily by the parties.

(31) On 22 March 2000 the Commission sent requests for
information under Article 11 of Regulation No 17 to
Alken-Maes, Haacht and Martens. Alken-Maes and
Haacht replied on 5 April, and Martens on 6 April.

(38)

(32) On 3 April 2000 the Commission carried out an inspec-
tion under Article 14(2) of Regulation No 17 at
Interbrew’s offices in Leuven.

(33) On 14 April 2000 the Commission sent requests for
information under Article 11 of Regulation No 17 to
Danone, the parent company of Alken-Maes, and to Hei-
neken NV, the Netherlands-based brewer. Danone and
Heineken supplied the information requested in letters
dated 10 and 11 May.

( 25) See footnote 23.

In the evidence available to the Commission there are
frequent references to employees or former employees of
the undertakings to which the proceedings relate. In the
Decision these names have been replaced by indications
of the positions held by those people at the time. Where,
as a consequence, a quotation from the evidence present-
ed here differs from the corresponding quotation in the
statement of objections, a reference is provided to the
relevant paragraph of the statement of objections for the
benefit of the addressees of the Decision.

4.2.

Introduction and summary

(39) The following recitals set out the facts of long-term and
complex restrictive agreements relating to the Belgian
market in beer for consumption both on and off the
premises. Interbrew and Alken-Maes, the largest and the
second-largest suppliers to the Belgian beer market, con-
sulted together and concluded agreements concerning
prices and promotions in the off-trade, the sharing

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of customers in the on-trade,the restriction of investment
and advertising in the on-trade, and their pricing struc-
tures (section 4.3); they also shared information on their
sales figures (section 4.4). They sought to take some
of these measures further through the Confederation of
Belgian Brewers (section 4.5). There was separate consul-
tation and an exchange of
information between
Interbrew, Alken-Maes and the brewers Haacht and Mar-
tens concerning private-label beer (section 4.6).

were reached regarding prices. There was also discussion
of a reduction of marketing investments. Interbrew used
the code name ‘Université de Lille’ for this process (26).
It was said that Danone wanted to widen the existing
cooperation between Interbrew and Alken-Maes. Within
Interbrew there was initiallya reluctance towiden cooper-
ation, motivated in part by the competition rules. In
addition, Interbrew felt that as the market leader it was in
a position to take certain decisions alone.

4.3. The bilateral agreements
between Interbrew and Alken-Maes
regarding market shares and prices

4.3.1.

Preliminary observations

(40)

From the end of 1992 at the latest, and in any event up
to and including the beginning of 1998, there was a
succession of meetings and other forms of contact
between representatives of Interbrew and representatives
of Danone or of Alken-Maes, which was a subsidiary of
Danone operating in Belgium. Most of these meetings
between Interbrew and Danone representatives are irrel-
evant to this Decision, because they were concerned
essentially with possible mergers and takeovers and with
possible cooperation between these undertakings on mar-
kets outside Belgium.

(41) The description of meetings and other forms of contact
set out below is therefore not intended to give a complete
picture of all the contacts that took place between rep-
resentatives of the undertakings concerned. It covers only
those contacts which are relevant to this Decision and
which are documented. Other contacts will be referred to
only where this is felt to be necessary for an accurate
account of the context in which the relevant and docu-
mented contacts took place.

4.3.2. The facts: chronology

4.3.2.1. T h e

p e r i o d
1 9 9 2 u n t i l 1 9 9 3

f r o m t h e

e n d

o f

(42)

Summary

At the end of 1992 and in the course of 1993 there was
regular contact to discuss the off-trade, and agreements

(43) On 17 November 1992 there was a meeting between
representatives of Alken-Maes, Interbrew and Kronen-
bourg/Danone. At this meeting the new general manager
of Alken-Maes was introduced to Interbrew (27).

(44) On 28 January 1993 Interbrew’s manager for the off-
trade in Belgium reported to Interbrew’s general manager
for Belgium on a ‘meeting with beer wholesalers’ (28):

‘After a great deal of talk we reached the following
agreements:

— ITW and Maes will try to raise permanent pro-
motion prices (the GIB retail chain’s policy) as
rapidly as possible from the present rate to
BEF 285 initially and BEF 295 in a second stage ...
[NB: This is doubtless the price of a crate of Pils],

— Promise not to pay for any promotion or advertis-
ing brochures for crates of Pils in the next three
months if the minimum price is not complied
with. Extension of this after a meeting in three
months.’

(26) This code name was generally used to refer to cooperation
between Interbrew and Alken-Maes:
from Interbrew,
22.12.1999 (doc. 37614 01984); see also recitals 51, 60, 63,
107 and 108; this cooperation was later referred to by the code
name ‘project Green’ (recitals 68 and 71).

letter

(27) Letter from Interbrew, 14.1.2000 (doc. 37614 2600), and
especially Annex I.2 to that
letter from Interbrew,
28.2.2000 (doc. 37614 7551-7552, 7680-7684), and especially
Annex 18 to that
letter; see also statement of objections,
paragraph 44.

letter;

(28) Inspection at the offices of Interbrew, document LVL1 (doc.
37614 8559); see also statement of objections, paragraph 45.

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In its reply to the statement of objections, Danone stated
that this meeting was a meeting between the brewers and
the federation of beer wholesalers which took place on
28 January 1993.

in Belgium, we should take the lead and make those
decisions, others will follow if they are smart.’ (30).

(45) On 12 March 1993, in advance of a dinner with a rep-
resentative of Danone (then called BSN), the interim Chief
Executive Officer of Interbrew was informed in a memo
from Interbrew’s Executive Vice-President Core Market
Beers Europe of the contacts that had taken place up to
that time (29):

‘There have been a few meetings between Mr ... [the
chairman and general manager of Danone] and Mr ...
[the previous CEO of Interbrew]. What transpired from
those is the possibility of exploring closer cooper-
ation ... Personally, I see Mr... [the chairman andgeneral
manager of Kronenbourg, and general manager of
Danone] through the Amsterdam Group a couple of
times a year. The subject of “cooperation” comes up
now and again, however, there are some dangerous
strings attached.
I’ve discussed your meeting on
March 16 with both our managers in France ... and in
Belgium ...

3)

Strategic area:

...

Belgium:

(46) The memo described as attached to the internal memo of
12 March 2000 is dated 18 February 1993; the subject is
stated to be a ‘reduction of marketing spending with a
view to improving our profitability in the short, medium
and long term’ (31). The code name used for this by
Interbrew is ‘Université de Lille’ (32). On 10 December
1992 and 19 January 1993 there were two internal meet-
ings in Interbrew under this title (33).

(47) The memo records the following conclusions and rec-

ommendations:

‘— Part of the cost of providing POS [point-of-sale]
material to be transferred to wholesalers on a 50/
50 basis, along with an increase in the price of
glasses ...

This is the trickiest part of your discussion. They prob-
ably want to increase “cooperation” in Belgium. Mr ...
forced us to talk as “we needed some money”, but we
are most reluctant to do this as we want to avoid any
problems under Articles 85 or 86 ...

— Advertising spending should ideally not exceed
BEF 300 million in 1993, assuming that the larg-
est competitor does not exceed BEF 140 million.
This expenditure relates only to Pils, including NA
[non-alcoholic] and Light ...

Also, they have more to gain than we. I attach a memo
showing what we have been talking about up until
now, but so far, nothing concrete has been done. We
are most reluctant to continue these discussions. I feel

( 29) Letter from Interbrew, 28.2.2000 (doc. 37614 7551-7552,
7558-7562), and especially Annex 1 to that letter; see also
statement of objections, paragraph 46.

(30) Original English.
(31) Annex 1 to Interbrew letter of 28.2.2000 (doc. 37614 7562);

see also statement of objections, paragraph 48.

(32) Original French: ‘Université de Lille: étude projet de réduction
des investissements commerciaux dans le but d’améliorer à court,
moyen et long terme notre rentabilité.’

(33) Annex I.2 to Interbrew letter of 14.1.2000 (doc. 37614 2600-

2601).

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— Other parameters to be studied: costs of instal-
lation and maintenance of pumps, price policy in
the off-trade, new pricing system ...’ (34)

would be no bad idea if I was invited along to the top-
level meeting with [...]. Only once initial contact has
been established and an agreement isin prospect would
I involve [Alken-Maes]. The initiative taken by Maes
last year did not prove feasible: a) there was a lack of
trust, but certainly also b) Maes was too small. This is
something only ITW can do.’

(48) At the end of 1993 Interbrew’s general manager for
Belgium and the general manager of Alken-Maes met at
the Duc d’Arenberg restaurant in Brussels (35).

(49) On 19 August 1993 the new CEO of Interbrew, who
had previously been Interbrew’s Executive Vice-President
Core Market Beers Europe, stated as follows aboutthe ‘93/
94 Budget’ (36): As far as the price increase is concerned,
4 % is a challenge ... Of course, we want you to do the 4 %.
If you need help to convince Maes, let me know (37).

(50) On 2 November Interbrew’s CEO had talkswith the major
retail chain [...]. The meeting is reported in a memo of
3 November 1993. The memo states as follows (38):

‘[...] would appreciate an initiative on the part of
Interbrew to make contact with [...] and [...] ([...] are the
three largest Belgian supermarket chains) in order to
arrive at a gradual increase in the price of beer and soft
drinks to the level desired by ITW [Interbrew] ... If a
consensus begins to emerge consideration will be given
to the possibility of a three-way meeting ... I think it

4.3.2.2. 1 9 9 4

(51)

Summary

In 1994 the contacts between Interbrew and Danone/
Alken-Maes were extended. At a meeting on 11 May
Danone put Interbrew under pressure: if the parties did
not reach agreement in respect of the Belgian market, life
would be made difficult for Interbrew on the French
market. Interbrew did not accept Danone’s demand that
it transfer 500 000 hl of beer to Alken-Maes, but it did
not wantwar either, and the parties stayed in closecontact
with one another. At two meetings in 1994 the two
general managers responsible for Belgium made prep-
arations for a gentleman’s agreement between the two
brewers. Interbrew referred to thisgentleman’s agreement
by the name ‘Université de Lille’, although the new project
went further than the process of the same name referred
to in Interbrew’s memo of 18 February 1993, which was
aimed at reducing marketing spending (recital 46). The
new agreement was confirmed at a meeting between the
parties on 19 November 1994. On 24 November, as part
of the cooperation between Interbrew and Alken-Maes,
an agreement was concluded regarding the sharing of
customers.

( 34) Original French: ‘Transférer une partie des coûts de la dotation
le principe 50/50
en matériel POS aux revendeurs suivant
accompagné d’une hausse du prix des verres ... En ce qui concerne
les dépenses publicitaires, celles-ci idéalement ne devraient pas
dépasser en 1993, 300 MBF en assumant que le concurrent
principal ne dépasse pas 140 MBF. Ces dépenses ne concernent
que les Pils y compris les N.A. et Lights ... Autres paramètres à
l’étude: coût installation/maintenance débit, politique des prix en
alimentaire, nouvelle tarification ...’
Inspection at the offices of Alken-Maes, document MV30 (doc.
37614 00554); letter from Interbrew, 28.2.2000 (doc. 37614
7554); letter from Alken-Maes, 7.3.2000 (doc. 37614 7878); see
also statement of objections, paragraph 50.

( 35)

( 36) Annex 9 to the Interbrew letter of 28.2.2000 (doc. 37614 7597);

see also statement of objections, paragraph 51.

( 37) Original English.
( 38) Annex 10 to the Interbrew letter of 28.2.2000 (doc. 37614
7599-7600); see also statement of objections, paragraph 52.
Original Dutch.

(52) At the beginning of 1994 Interbrew’s CEO made the
acquaintance of the new general manager of Danone’s
beer division (39). At their first meeting or meetings —
there may have been a meeting in Amsterdam, and there
certainly was one at Danone’s offices in Paris — one of
the subjects discussed was the adoption of a certain course
of conduct on the market (40).

(39) Letter from Interbrew, 8.2.2000 (doc. 37614 7478, 7488), and
especially Annex 1 to that letter; letter from Interbrew, 28.2.2000
(doc. 37614 7555, 7683), and especially Annex 18 to that letter;
inspection at the offices of Interbrew, document MV3 (doc.
37614 8690); see also statement of objections, paragraph 54.
(40) Original French: ‘Ils ont eu des discussions sur un certain scénario

de comportement de marché.’

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(53) At an internal discussion within Interbrew on 5 May
1994, Interbrew’s CEO described a scenario requested
by Danone/Kronenbourg (41). Interbrew was to transfer
500 000 hl to Alken-Maes, essentially in the off-trade.
Otherwise Interbrew would be annihilated in France, and
an attack would be mounted on it in Belgium by means of
very low prices (42).

(55) A document from Heineken confirms Interbrew’s state-
ment regarding the relationship between the Belgian and
the French markets and the proposals put forward by
Kronenbourg/Danone. ‘Threeyears ago [the general man-
ager of Danone’s beer division] left Interbrew a choice:
either they gave Maes an extra 500 000 hl or he would
drive them out of France. The form of cooperation that
existed between Heineken and Kronenbourg in France
was referred to (46)’.

(54) The scenario put forward by Kronenbourg was discussed
by executives of Danone and Interbrew at the restaurant
Le Roy d’Espagne in Brussels on 11 May 1994 (43);
Interbrew has its registered office at the same address,
Grote Markt/Grand Place 1, B-1000 Brussels. There was
probably also a representative of Alken-Maes present.
The following came up for discussion (44). ‘[The general
manager of Danone’s beer division] repeated his demand
that 500 000 hl be transferred to Alken-Maes, and threat-
ened that otherwise Interbrew would be destroyed in
France. He wanted Interbrew and Alken-Maes to conduct
themselves on the Belgian market in line with “the agree-
ments in France” ... The French mechanism can be sum-
marised as follows. Heineken’s and Kronenbourg’s off-
trade sales managers consult together very often in order
to check their respective market shares and to manipulate
promotions, prices and conditions’ (45).

( 41) Letter from Interbrew, 28.2.2000 (doc. 37614 7683), and
especially Annex 18 to that letter; see also statement of objec-
tions, paragraph 55.

(56) The situation in France and Belgium was discussed again
in a telephone conversation between the CEO of
Interbrew and the chairman and general manager of
Danone on 6 January 1994 (47). In an internal memo
from Interbrew’s CEO dated 7 July 1994 we find the
following (48): ‘I agreed yesterday with the “Big Boss” of
“Green” [Danone] that we would not launch a war but
instead try to gain time. Our objective is to arrive at a
solution such as a marketing agreement for example, and
to put the same thing into practice in Belgium. We will
certainly stay in contact.’ (49) According to Danone the
telephone conversation referred to was concerned with
Interbrew’s distribution efforts in France, but Danone
documents confirm the existence of a non-aggression
pact between Interbrew and Danone/Alken-Maes on the
Belgian market (50). There is a reference to ‘July 94: peace
with [Interbrew CEO] almost signed’ (51) and ‘market
shares justice of the peace’ (52). The same documents also
confirm the relationship between the agreements on the
Belgian and French markets:
Regional peace in France

National peace.’ (53)

‘Peace in Belgium

( 43)

( 42) Original French: ‘... a évoqué avec nous, au cours d’une réunion
interne (le 5 mai 1994), le scénario qui était une demande de
Kronenbourg. En substance, KRO exerçait du chantage pour que
ITW transfère 500 000 hl vers AM (surtout dans le Food). Sinon,
ils détruiraient ITW-France avec la complicité de Heineken et ils
attaqueraient ITW en Belgique avec des prix très bas.’
Interbrew’s reply to the Commission’ request for information,
23.12.1999, including Annex B.3 to that reply (doc. 37614
2002, 2039); Annex I.2 to Interbrew letter of 14.1.2000 (doc.
37614 02602); Annex to Interbrew letter of 19.1.2000 (doc.
37614 02672-02674); Annex 18 to Interbrew letter of
28.2.2000 (doc. 37614 7683);
the offices of
Interbrew, documents MV5 and MV8 (doc. 37614 8692, 8695);
Danone’s reply to request for information, 10.5.2000 (doc.
37614 9864-9865); see also statement of objections, para-
graph 58.

inspection at

( 44) Annex 18 to Interbrew letter of 28.2.2000 (doc. 37614 7683).
( 45) Original French:

‘[...] a réitéré ses exigences de transférer
500 000 HL vers AM sous menace de la destruction de ITW en
France. Il a préconisé un comportement ITW/AM en Belgique
qui serait calqué sur “les accords en France” ... Le mécanisme
français se résume à ce que les Directeurs de vente alimentaire
(Food) de Heieneken en Kronenbourg se concertent très fréquem-
ment afin de contrôler les parts de marché respectives en
manipulant — les promotions, — les prix, — les conditions.’ See
also statement of objections, paragraph 56.

(57) At a dinner on 29 August 1994 a director of
general manager of Alken-

Interbrew met

the

(46) Annex to Heineken’s reply to request for information, 11.5.2000
(doc. 37614 9947); see also statement of objections, para-
graph 57. Original Dutch.

(47) Letter from Interbrew, 28.2.2000 (doc. 37614 7552); see also

statement of objections, paragraph 58.

(48) Annex 2 to Interbrew letter of 28.2.2000 (doc. 37614 7564).
(49) Original French: ‘J’ai convenu hier avec le “Big Boss” de “Green”
de ne pas commencer une guerre mais d’essayer de gagner du
temps. Notre but est de trouver une solution telle que, par
exemple, un contrat commercial et de mettre la même chose en
pratique en Belgique. Nous allons certainement rester en contact.’
for information, 10.5.2000 (doc.

(50) Danone’s reply to request

37614 9829-9831, 9943-9944).

(51) ‘Juillet 94: quasi signer une paix avec [...]’; see also statement of

objections, paragraph 60.
(52) ‘Parts de Marché juge de paix’.
(53) ‘Paix Belgique

Paix régionale France

Paix nationale’.

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Maes (54). The Interbrew representative states the follow-
ing (55): ‘Although the on-trade was not discussed at the
meeting in the Roy d’Espagne, once... had become general
manager of Alken-Maes he began to call me to suggest
that we should align our conduct in order to keep control
of the very big increase in investments needed to conclude
on-trade beer supply contracts. I had various other con-
versations, mainly by telephone, with [the general man-
ager of Alken-Maes]. He tried toset up a system of consul-
tation to take place before pubs were bought or sold. I
always refused. Against this background I had dinner with
[the general manager of Alken-Maes] ... The result was my
memo of 5 October 1994 to [the CEO of Interbrew] ... The
discussion at the dinner did not go beyond generalities. I
repeated that the “French mechanisms” were not trans-
posable to Belgium’ (56).

recitals 129 et seq.] also can be a good forum to study
ways and means to reduce cost of doing business in
Horeca.

4. We have communicated to him that he is the one
who has become aggressive and that, particularly in the
Food, we will react to his price actions, but we will not
take the initiative.’ (58)

(59) On 12 October 1994 Interbrew’s new general manager
for Belgium and the general manager of Alken-Maes met
at the Sheraton Airport Hotel at Brussels airport (59). In a
preparatory memo from Interbrew’s marketing manager
for the on-trade in Belgium to Interbrew’s general man-
ager for Belgium we read the following (60):

(58)

In the memo of 5 October 1994 this dinner with the
general manager of Alken-Maes is reported as follows (57):

‘1.

Putting an end to expensive attacks

He realizes that the situation in France and
‘1.
Belgium is very different and that what can be done in
one country can not be done in the other.

national customers sector ...

2.
He is under strong pressure from headquarters
to pursue an aggressive marketing policy in Belgium
which he fears will be costly and not necessarily
efficient.

traditional on-trade

extremely difficult to draw a line, few rules or
none

3. We agreed that discussion in the CBB on the
Arthur D. Little Horeca 2000 project [see below,

( 54)

Interbrew’s reply to request for information, 23.12.1999, and
especially Annex B.4 to that reply (doc. 37614 2002-2003,
2040); Annex I.2 to Interbrew’s letter of 14.1.2000 (doc. 37614
02602).

( 55) Annex 18 to Interbrew’s letter of 28.2.2000 (doc. 37614 7683-

7684); see also statement of objections, paragraph 59.

( 56) Original French: ‘Bien que l’Horeca n’était pas discuté lors du
meeting du Roy d’Espagne, [...], quand il est devenu directeur
général de AM en Belgique, commence à m’appeler avec la
demande de se concerter pour contrôler l’augmentation très forte
des investissements pour conclure des contrats de brasserie. Il y
a eu plusieurs autres conversations, surtout téléphoniques, avec
[...] Il a essayé de mettre sur pied un système de consultation
préalable lors d’achats et de ventes de cafés. J’ai systématiquement
refusé. Dans ce contexte j’ai eu un dîner avec [...] Le résultat a été
ma note du 5 octobre 1994 à [...] Au cours de ce dîner nous en
sommes restés à des généralités. J’ai réitéré que les “mécanismes
français” n’étaient pas transposables en Belgique.’
for

information,
23.12.1999 (doc. 37614 02014); see also statement of objec-
tions, paragraph 60.

to Interbrew’s reply to request

( 57) Annex I

first of all a method has to be established ...

all dimensions of distribution agreements should
be looked at:

a.

investment policy

b.

rebate policy ...

c.

logistical measures

(58) Original English.
(59) Interbrew’s reply to request for information, 23.12.1999 (doc.
37614 2003-2004); Annex I.1 to Interbrew letter of 14.1.2000
(doc. 37614 02591);
letter from Interbrew, 8.2.2000, and
especially Annex 3 to that letter (doc. 37614 7478, 7495).

(60) Annex B5 to Interbrew’s reply to request

for information,
23.12.1999 (doc. 37614 02041-02043); see also statement of
objections, paragraph 62. Original Dutch.

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2.

Reducing unproductive spending

4.

Efficiencies/market dynamics

sectors: publicity, pumps ...

— Diminish unproductive spendings:

A joint approach following on from the Arthur
D. Little study could produce considerable returns
for both parties. The two biggest brewers should
be able todictate the law here by laying down rules
together with the beer wholesalers’ federation.

...

4. General

— ... that the application of mutual agreements
cannot be checked (or that any checks must
be carried out by a neutral outside body, and
in that case there is too great a danger that it
will become known)

— using the CBB to achieve our objectives

looks simpler to me.’

(60)

In an internal memo of 14 October 1994, on the subject
of the ‘Université de Lille’, Interbrew’s general manager
for Belgium reports on the meeting of 12 October (61):
‘Enclosed you will find a document from our friends as
well as the one-page approach which I proposed. This
was accepted by our friends in terms of principle’ (62). The
document in question originates with Alken-Maes, and
gives an outline of the Belgian brewing industry and
possible solutions to problems that have arisen (63). In
the ‘one-page approach’ referred to here by Interbrew’s
general manager for Belgium, we read the following (64):

‘3. Gentlemen agreement:

— Noattack of obligations [i.e. on-trade outlets
with an exclusive purchasing agreement]

— Price-positioning food

— No systematic attack of brands in each

other’s obligations

( 61) Annex B6 to Interbrew’s reply to request

for information,

23.12.1999 (doc. 37614 02045).

( 62) Original English.
( 63) Annex B6 to Interbrew’s reply to request

for information
(doc. 37614 02046-02059); see also statement of objections,
paragraph 63.

( 64) Annex B6 to Interbrew reply to request

for

information,

23.12.1999 (doc. 37614 02044).

— P.O.S.

— Draught services

— Folder activities (no., % rebate, ...)

— Investments in Horeca (definitions?!)

5.

Structural measures

Concentration of production

Marketing policies (pricing, BEF 20 ...)’ (65)

(61) Danone too was aware of this agreement. In an internal
telephone conversation at the end of 1999 or the begin-
ning of 2000 in connection with the inspection carried
out by the Commission at the offices of Alken-Maes,
reference was made (66) to a ‘94 agreement carrying the
name of [the general manager of Alken-Maes]’ (67).

(62)

In an undated memo by Interbrew’s general manager for
Belgium in which these subjects are mentioned, there is
also a timetable (68):

‘Project definition and gentlemen agreement 01/11,
Market dynamics 01/02, Restructuring 01/04.’ (69)

(63) On 18 October 1994 there was a follow-up meeting
between Interbrew’s general manager for Belgium and the
general manager of Alken-Maes (70). From notes kept by

(65) Original English.
(66) Annexes 18 and 20 to Danone’s reply to request for information,

10.5.2000 (doc. 37614 9879-9881, 9888-9890).

(67) Original French: ‘Accord 94 sur les prix avec le nom de ...’; see

also statement of objections, paragraph 63.
(68) Annex B8 to Interbrew’s reply to request

for information,
23.12.1999 (doc. 37614 02061); see also statement of objec-
tions, paragraph 64.

(69) Original English.
(70) Inspection at the offices of Alken-Maes, document MV26 (doc.
37614 00550); Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02004); Annex I.1 to the Interbrew
letter of 14.1.2000 (doc. 37614 02591); Interbrew letter of
8.2.2000, and especially Annex 4 to that letter (doc. 37614
7478, 7496).

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the marketing manager for the on-trade in Belgium, it is
clear that ‘Université de Lille’ was discussed at this meeting
too (71).

(65) Talks between Interbrew’s general manager for Belgium
and the general manager of Alken-Maes continued on
26 October 1994 (74). On 7 November Interbrew’s gen-
eral manager for Belgium reported to the Interbrew CEO
as follows (75):

(64)

In an internal memo of 24 October 1994, Interbrew’s
general manager for Belgium summarised the discussion
so far, and proposed other steps to Interbrew’s CEO (72):

‘1.

Basis of any agreement

‘1. Reply from Green [here Alken-Maes] to ITW-

proposal

1.1.

Pricing:

Spirit accepted regarding respect of each others
current position in the market ...

2.

Program for profit growth

Basic agreement to work in 3 phases:

OK to establish key lager beers at same
price and KRO [Kronenbourg] ± 5 %
higher.

A.

Priority 1

1.2. Gentleman agreement:

— limited to classical Horeca,

— not to: national accounts, presence of
each others brands in obligations.

1.3. All other elements: OK

1.4.

Further proposals:

...

— apply rebates to net prices [prices before
excise duties, see in particular recitals 96 and
104 below],

...

small price increase in 1995.

...’ (73)

Pricing in the food to be established.

Maximum rebates or premiums for pro-
motion to be defined.

Review POS materials & costs for Horeca.

Review investment in POS ...

...

B.

Priority 2

Production rationalisation.

C.

Priority 3

Restructure the market:

— tariffication,

— horeca investments,

— draught costs,

— etc ...

( 71) Annex B7 to Interbrew’s reply to request

for information,
23.12.1999 (doc. 37614 02060); see also statement of objec-
tions, paragraph 65.

( 72) Annex B9 to Interbrew’s reply to request

for information,
23.12.1999 (doc. 37614 02062); see also statement of objec-
tions, paragraph 66.

( 73) Original English.

(74) Inspection at the offices of Alken-Maes, document MV29 (doc.
37614 00553); Interbrew reply to request for information,
23.12.1999 (doc. 37614 02004-02005); Annex I.1 to Interbrew
letter of 14.1.2000 (doc. 37614 02591); letter from Interbrew,
8.2.2000 (doc. 37614 7479, 7497).

(75) Annex B10 to Interbrew’s letter of 23.12.1999 (doc. 37614
02064-02065); see also statement of objections, paragraph 67.

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3. Next steps

the heading ‘Spirit’ the notes mention ‘Creative compe-
tition — avoid direct attack — pay attention to other
competitors — consultation’ (80).

04/11: Green [here Alken-Maes] to review pro-
gram with superiors.

09/11: meeting with respective sales managers to:

— confirm overall spirit;

— define next steps for “Priority 1” ...’ (76)

(66) The meeting which according to the memo of 7 Novem-
ber was planned for 9 November did in fact take place on
that date. Interbrew was represented by its Belgiangeneral
manager, off-trade manager and marketing manager, and
Alken-Maes was represented by its general manager and
managers for the off-trade and the on-trade (77). A separ-
ate document sets out the ‘program for profit growth’
referred to in the memo of 7 November 1994; some
marginal notes have been added (78). These notes may
well have been made at the meeting of 9 November 1994,
and among other things describe a price agreement for
the off-trade, showing the price of a crate of Pils at
BEF 275 (79); such a price agreement had been referred to
under ‘Priority 1’ in the memo of 7 November 1994. It
is also noted that the points in ‘Priority 3’ are to be
implemented by the CBB.

(67)

Interbrew’s marketing manager for the on-trade in
Belgium also made notes at or with reference to this
meeting; the notes are dated 9 November 1994. Under

(68) On 24 November 1994 Interbrew’s marketing manager
for the on-trade in Belgium and Alken-Maes’s managerfor
the on-trade discussed outstanding differences regarding
individual sales outlets, and also ‘project Green’ (81). In
handwritten notes made at or with reference to the meet-
ing, the marketing manager gives the following details of
the agreement for the ‘traditional’ on-trade (82):

‘It was agreed that drink supply contracts should be
respected at all times. No new contract if the customer
had a contract with more than two years to run, to
give the present brewery the opportunity to secure a
renewal
first. No prospecting for speciality beers
among customers that had Pils contracts with the com-
petition (each to his own). No incentives to beer whole-
salers to convert specialities by increasing rebates.’

In the margins of the same notes the marketing manager
has also made a few critical comments on the agreements.
He remarks in one place that there is a danger that ‘some-
one else may run away with the business’.

4.3.2.3. 1 9 9 5

(69)

Summary

regular consultation between
In 1995 there was
Interbrew and Alken-Maes (and Danone) concerning the
implementation of the agreements concluded in 1994.
The two brewers also began to consult regarding a new
system of pricing for the on-trade and the off-trade (83).

( 76) Original English.
( 77)

Interbrew’s reply to request for information, 23.12.1999 (doc.
37614 02005); Annex I.1 to Interbrew letter of 14.1.2000 (doc.
37614 02591); letter from Interbrew, 8.2.2000, and especially
Annex 6 to that letter (doc. 37614 7479, 7498); see also
statement of objections, paragraph 68.

( 78) Annex B11 to Interbrew’s reply to request for information,

23.12.1999 (doc. 37614 02066).

( 79) Original English:

‘1. Pricing in the food to be established.

J=SA=A-M= 275,-.’

(80) Annex B14 to Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02081); see also statement of objec-
tions, paragraph 69. Original Dutch.

(81) Interbrew’s reply to request for information, 23.12.1999 (doc.
37614 02006); like ‘Université de Lille’, ‘Project Green’ is a code
name used by Interbrew to refer to the cooperation between
Interbrew and Alken-Maes;
for
information, 23.12.1999 (doc. 37614 01984).

Interbrew’s reply to request

(82) Annexes B15 and B16 to Interbrew’s reply to request of
information, 23.12.1999 (doc. 37614 02082-02086); see also
statement of objections, paragraph 70. Original Dutch.

(83) The brewers’ rebate system for sales for consumption on and off

the premises.

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(70) On 10 January 1995, at the Roy d’Espagne in Brussels, the
general manager for Belgium and CEO of Interbrew and
the general manager of Danone’s beer division discussed
relations between Interbrew and Alken-Maes (84).

ager for the off-trade, and Alken-Maes’s general manager
and managers for the on-trade and the off-trade (87).
Interbrew’s marketing manager for the on-trade in
Belgium drew up a preparatory document, dated 14 April,
summarising the relevant sectors, ends and means (88):

(71) On 25 January and 10 February Interbrew’s general man-
ager for Belgium and the general manager of Alken-Maes
discussed the status of ‘project Green’ (85).

(72) On 30 January Alken-Maes’s manager for the on-trade
sent a letter to Interbrew’s marketing manager for the on-
trade in which he compared offers made by Alken-Maes
with those of Interbrew. The letter states as follows: ‘I am
forced to conclude that Interbrew has no real intention of
acting to bring about a healthier on-trade market, since
the spirit of what we have regularly discussed together —
in the presence of our respective superiors, and at their
express initiative — is manifestly being ignored ... I would
be glad to have your reaction, in the hope that you might
be able to clarify matters, and especially that you would
want to prevent any repetition in future. It should be clear
that little or nothing can be expected by way of results
from our discussions in the CBB working parties if we see
that even bilaterally we are unable to follow a sensible
approach on the ground.’ (86)

(73) Relationships and agreements on the market were dis-
cussed once again at a meeting in Leuven on 18 April.
Present were Interbrew’s general manager for Belgium,
marketing manager for the on-trade in Belgium, and man-

( 84)

for

( 85)

Interbrew’s reply to request for information, 23.12.1999 (doc.
37614 02006); Annex I.1 to Interbrew letter of 14.1.2000 (doc.
37614 02592); Interbrew letter of 8.2.2000, and especially
Annex 9 to that letter (doc. 37614 7479, 7501); inspection at
the offices of Interbrew, document MV1 (doc. 37614 8688);
information,
Annex 24 to Danone’s reply to request
10.5.2000 (doc. 37614 9903-9904); see also statement of
objections, paragraph 72.
Inspection at the offices of Alken-Maes, document MV21 (doc.
37614 00545); Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02006-02007); Annex I.1 to Interbrew
letter of 14.1.1999 (doc. 37614 02592); letter from Interbrew,
8.2.2000, especially Annexes 10 and 12 (doc. 37614 7479-
7480, 7502, 7504);
letter from Alken-Maes, 7.3.2000 (doc.
37614 7880); see also statement of objections, paragraph 72.
( 86) Annex 14 to Interbrew letter of 28.2.2000 (doc. 37614 7609-
7612); see also statement of objections, paragraph 74. Original
Dutch.

‘1.

Sector:

tie contracts

Objective:

maintain the Belgian “system”

Means:

respect tie contracts

...

ask for information in cases of
doubt

2.

Sector:

national customers

Objective:

avoid an escalation of “sacri-
fices”

Means:

respect current agreements

no attacks on each other’s cus-
tomers

consult on new customers

3.

Sector:

new business

Objective:

Means:

contain the cost of doing busin-
ess

direct contact for all cases of
overvaluation/overinvestment,

a common language for the calculation of costs,
and a ceiling

4.

Sector:

competition

Objective:

concentrate attacks on other
competitors

(87) Interbrew’s reply to request for information, 23.12.1999 (doc.
37614 02007-02008); Annex I.1 to Interbrew letter of
14.1.2000 (doc. 37614 02593); letter from Interbrew, 8.2.2000,
and especially Annex 15 to that letter (doc. 37614 7580-7481,
7507).

(88) Annex B20 to Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02094); see also statement of objec-
tions, paragraph 75.

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Means:

exchange market information

incentives
(bonuses!)’ (89)

for

teams

to; it was said that ‘the exact impact will be looked at
together later (IB-AM)’, and that ‘Alken-Maes must like-
wise have the first phase ready on 1 January 1996’. One
of the requirements for implementation on 1 January
1996 was said to be ‘being more or less on the same
wavelength as IB’ (94).

Notes made at the meeting show that there was talk of a
ceiling on investment costs of [...] per hectolitre. At this
meeting Interbrew and Alken-Maes also discussed the
status of the CBB ‘Vision 2000’ project (on this project see
also recitals 128 et seq.) (90).

(74) At an Alken-Maes internal meeting on 15 May 1995,
Alken-Maes’s management controller announced that
Interbrew intended to launch its new prices on 1 January
1996, and gave some details. He also said that Interbrew
wanted to enter into contact with Alken-Maes in this
connection, and that a meeting was planned for 18 May.
The objective was clearly to work in the ‘same direc-
tion’ (91). Alken-Maes now decided to speed up its own
pricing study, and on 16 May an action plan was sent to a
number of senior Alken-Maes managers (92).

(75)

Interbrew’s general manager for Belgium and the general
manager of Alken-Maes met on 18 May (93).

(76) At an internal presentation of Alken-Maes’s pricing study
on 12 June, Interbrew’s new pricing system was referred

( 89) Original French: ‘1. Domaine: Les contrats d’obligation, Objectif:
Préserver le “système” belge, Moyens: Respect des contrats
d’obligation ...Demande d’info en cas de doute. 2. Domaine: Les
clients nationaux, Objectif: Éviter
l’escalade des “sacrifices”,
Moyens: Respect des accords en cours, Pas d’attaque des clients
mutuels, Concertation pour les nouveaux. 3. Domaine: Les
nouvelles affaires, Objectif: Contenir le “cost of doing business”,
Moyens: Contact direct pour tous les cas de surévaluation/
surinvestissement, Language commun en matière de calcul de
coût et fixation d’un plafond. 4. Domaine: La concurrence,
Objectif: Concentrer l’attaque sur les autres concurrents, Moyens:
Échange d’informations marketinges, Stimulation des équipes
(primes!).’

( 90) Annex B19 to Interbrew’s reply to request for information,

23.12.1999 (doc. 37614 02091-02093).

( 93)

( 91) Annex 39 to Alken-Maes letter of 7.3.2000 (doc. 37614 8497).
( 92) Letter from Alken-Maes, 7.3.2000, and especially Annex 39 to
that letter (doc. 37614 7881, 8495-8501); see also statement of
objections, paragraph 76.
Inspection at the offices of Alken-Maes, document MV23 (doc.
37614 00547); Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02008); Annex I.1 to Interbrew letter
from Interbrew,
of 14.1.2000 (doc. 37614 02593);
8.2.2000, and especially Annex 16 to that letter (doc. 37614
7481, 7508); see also statement of objections, paragraph 77.

letter

(77) A subsequent meeting between Interbrew’s general man-
ager for Belgium and the general manager of Alken-Maes
took place at Interbrew’s offices on 30 June(95). On 4 July
the CEO of Interbrew had a telephone conversation with
the general manager of Danone’s beer division. From a
preparatory memo drawn up by Interbrew’s Executive
Vice-President Western Europe, and the report on the
conversation drawn up by Interbrew’s CEO, it is clear that
Interbrew believed it had complied with its agreements in
Belgium (96): ‘We have respected our deal in Belgium’ (97).

(78)

In an internal memo of 12 July on the subject of ‘Pricing
and logistics’ (withoutAnnexes), Interbrew’s general man-
ager for Belgium says ‘I believe it couldbe usefulto discuss
these prices with A-M. When would that be possible?
Appointment set for 30 August’ (98).

(79) On 28 August 1995 Interbrew’s new general manager for
Belgium, who had previously been manager for the off-
trade, sent a letter to the general manager of Alken-Maes,
which read as follows (99): ‘I would like to thank you and
your people for your congratulations on my appointment
as general manager for Belgium. You worked in excellent
mutual understanding with [the previous general man-
ager for Belgium], and I am looking forward to continuing

(94) Inspection at the offices of Alken-Maes, document MV15 (doc.
37614 00519-00527); letter from Alken-Maes, 7.3.2000 (doc.
37614 7881); see also statement of objections, paragraph 78.
Original Dutch: ‘juiste impact wordt samen later bekeken. (IB-
AM)’; ‘Alken-Maes moet eerste fase ook klaar hebben tegen 1/1/
96’; ‘+/- op dezelfde golflengte als IB zitten’.

(95) Inspection at Alken-Maes’s offices, document MV24 (doc. 37614
00548); Annex I.1 to Interbrew letter of 14.1.2000 (doc. 37614
02593); letter from Interbrew, 8.2.2000, and especially Annex 17
to that letter (doc. 37614 7481, 7509); letter from Alken-Maes,
7.3.2000 (doc. 37614 7881).

(96) Letter from Interbrew, 28.2.2000, and especially Annexes L-15
and L-16 to that letter (doc. 37614 8970, 9046-9051); see also
statement of objections, paragraph 79.

(97) Original English.
(98) Annex 18 to Interbrew letter of 8.2.2000 (doc. 37614 7510);
see also statement of objections, paragraph 80. Original Dutch.

(99) Inspection at Interbrew’s offices, document MV22 (doc. 37614
8919); see also statement of objections, paragraph 81. Original
Dutch .

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with you in the same spirit. There are more than enough
win/win opportunities, either direct or through a pro-
fessional CBB, and good communication is a guarantee of
success. Till 1 September.’

Interbrew was discussed (105). There was a further meeting
between Interbrew’s general manager for Belgium and the
general manager of Alken-Maes on 31 October (106).

(80)

It was not on 30 August, therefore, but on 1 September
that the meeting took place between Interbrew’s former
general manager for Belgium (who in August had been
appointed Chief Operating Officer (COO) Europe/Asia
Pacific/Africa),
Interbrew’s new general manager for
Belgium, and the general manager of Alken-Maes (100). At
this meeting the ‘exact impact’ was ‘looked at’ (see above,
recital 76) (101). Three days later Alken-Maes’s general
manager reported on the meeting to the company’s man-
agement controller (102).

(81) Around this time the brewers had to consider a request
from the Belgiandistributive trades federation, Fedis.Fedis
wanted a payment known as a ‘sorting charge’ to be made
to its members, the multiple stores, for every crate of
sorted empty bottles (103).

(82) On 26 October representatives of Alken-Maes and
Interbrew agreed a response to Fedis’s approach. The
meeting was attended by Interbrew’s new manager for the
off-trade and its invoicing manager, and by Alken-Maes’s
management controller. According to Interbrew, Alken-
Maes and Interbrew had been discussing this sorting char-
ge with Fedis on behalf of the CBB, and were consulting
with one another in that connection. From the notes kept
by a member of Alken-Maes’s staff who was present,
however, it is clear that there had not been any meeting in
the CBB framework, because it
is noted that some
measures are to be tackled via the CBB (104). Furthermore,
Alken-Maes acknowledges that an agreement with

( 100) Interbrew’s reply to request for information, 23.12.1999 (doc.
37614 02008); Annex I.1 to Interbrew letter of 14.1.2000 (doc.
37614 02593); letter from Interbrew, 8.2.2000, and especially
Annex 19 to that letter (doc. 7481, 7511).

( 101) Inspection at the offices of Alken-Maes, document MV14 (doc.

37614 00494-00502).

( 102) Annex 29 to Alken-Maes’s reply to request for information,
letter from Alken-
10.12.1999 (doc. 37614 01937-01939);
Maes, 7.3.2000 (37614 7881-7882); see also statement of
objections, paragraph 82.

( 103) As to the size of this sorting charge, the values given by the
undertakings concerned differ, ranging from [...] (Haacht) to [...]
(Danone).

( 104) Letter from Alken-Maes, 7.3.2000, and especially Annex 40 to

that letter (doc. 37614 7882, 8502-8504).

4.3.2.4. 1 9 9 6

(83)

Summary

In 1996 there was intensive consultation between the
brewers regarding pricing. Both brewers wanted a new
system. They discussed the structure of a new pricing
system and the direction taken by rebates.

(84) On 10 January 1996 Interbrew’s general manager for
Belgium and the general manager of Alken-Maes dis-
cussed pricing further (107). Alken-Maes states the fol-
lowing (108):

‘Upon his return, [the general manager of Alken-Maes]
explained Interbrew’s position on pricing policy to
[Alken-Maes’s management controller]. [Alken-Maes’s
management controller] noted that there had to be “an
agreement in principle with Interbrew by 10 February
1996”. In a handwritten note, [the general manager of
Alken-Maes] recorded that the pricing study had to
cover three dimensions: logistics, pricing proper and
marketing. A memo from [Alken-Maes’s management
controller] set up an action plan inside Alken-Maes,
and identified the responsibilities of stated members of
staff for each aspect of the study, so as to be able to
respond quickly to the Interbrew initiative. It was also
decided ... to introduce Alken-Maes’s new prices no
earlier than 1 January 1998, on the basis of customer
behaviour in 1997.

(105) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7882): ‘On 26
and 31 October representatives of Interbrew and Alken-Maes
met in order to arrive at a concerted response to the request
from Fedis.’ Original French.

(106) Inspection at the offices of Alken-Maes, document MV25 (doc.
37614 00549); reply to request for information, 23.12.1999
(doc. 37614 02009); see also statement of objections, para-
graph 84.

(107) Inspection at the offices of Alken-Maes, document MV19 (doc.
37614 00543); Annexes 31 and 32 to Alken-Maes’s reply to
for information, 10.12.1999 (doc. 37614 01942-
request
01952);
information,
to request
Interbrew’s
23.12.1999 (doc. 37614 02009).

reply

for

(108) Letter from Alken-Maes, 7.3.2000, and especially Annex 41 to
that letter (doc. 37614 7882, 8506-8507), with references to
the following documents: Annexes 31 and 32 to Alken-Maes’s
reply to request for information, 10.12.1999 (doc. 37614
01942-01952); inspection at the offices of Alken-Maes, docu-
ments AvW12, MV3, MV4 and MV13 (doc. 37614 00121-
00130, 00385, 00386-00403, 00472-00493).

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There was doubtless another meeting between
[Interbrew’s general manager for Belgium] and [the
general manager of Alken-Maes] in January or Februa-
ry. The notes kept by [the general manager of Alken-
Maes] summarise Interbrew’s position regarding price
structure, rebates and logistics. In a memo of 15 Febru-
ary 1996 the consultant, Martichoux, summarised a
conversation with [the general manager of Alken-
Maes] concerning the progress of the pricing study at
Interbrew.

On 1 March Martichoux presented its study to Alken-
Maes; the study stated that agreement could be reached
with Interbrew regarding the price structure and the
timetable. The memo presenting the study also stated
that an agreement with Interbrew would simplify the
introduction of a future system. This presentation was
followed by another on 15 and 16 April.

[The general manager of Alken-Maes] learned that
Interbrew wanted to introduce its new system on
1 January 1997; [the general manager of Alken-Maes]
asked [Alken-Maes’s management controller] to speed
up the implementation of the new system so as to be
able to introduce it on the same date.’ (109)

(85) The other meeting which according to Alken-Maes took
place between Interbrew’s general manager for Belgium
and the general manager of Alken-Maes (recital 84) may

( 109) ‘À son retour, Monsieur ... expose la position d’Interbrew
concernant la politique tarifaire à Monsieur ... Monsieur ... prend
note qu’il faut un “accord de principe avec Interbrew pour le 10
février 1996”. Dans une note de la main de Monsieur ..., il
note que l’étude tarifaire doit comprendre trois dimensions:
logistique, purement tarifaire et commerciale. Une note de
Monsieur ... met en place un plan d’action au sein d’Alken-Maes
et identifie les responsabilités de certains employés pour chaque
aspect de l’étude afin de réagir rapidement à l’initiative d’Inter-
brew. Il est aussi décidé ... d’introduire la nouvelle tarification
d’Alken-Maes au plus tôt le 1er janvier 1998, sur base d’une
analyse du comportement des clients en 1997. Il y a sans doute
eu une autre réunion entre Messieurs ... et ... en janvier ou en
février. Des notes manuscrites de Monsieur ... résument la
les
position d’Interbrew concernant
la structure des prix,
ristournes et la logistique. Dans une note du 15 février,
le
consultant Martichoux résume une conversation avec Mon-
sieur ... concernant
l’avancement de l’étude tarifaire chez
Interbrew. Le 1er mars, Martichoux présente son étude à Alken-
Maes, dans laquelle il est noté qu’un accord avec Interbrew est
possible sur la structure des prix et sur le calendrier. La note de
présentation précise aussi qu’un accord avec Interbrew facilitera
la mise en place du futur système. Cette présentation est suivie
d’une autre les 15 et 16 avril 1996. Monsieur ... apprend
qu’Interbrew introduirait sa nouvelle tarification le 1er janvier
1997. Monsieur ... demande à Monsieur ... d’accélérer la mise en
place d’un nouveau système de tarification afin de pouvoir
l’introduire à la même date.’ See also statement of objections,
paragraph 86.

have been the meeting in Leuven on 29 February 1996.
Interbrew’s Chief Operating Officer Europe/Asia Pacific/
Africa was also present at that meeting (110). On 28 Febru-
ary 1996, the day before the meeting, he referred in a
telephone conversation with the chairman and general
manager of Heineken (111) to the existence of a ‘non-war
agreement in Belgium’ (112).

(86) A subsequent meeting on pricing took place on 24 April.
It was attended by Interbrew’s general manager for
Belgium and manager for the off-trade, and the general
manager and management controller of Alken-Maes (113).
In connection with this meeting Alken-Maes states the
following (114):

‘The meeting discussed the merits of a graded tariff, a
more transparent rebate policy, and the logistical
aspects of the new pricing system. It appeared that
Alken-Maes was a supporter of an open logistical pri-
cing system, while Interbrew did not want to apply a
transparent tariff to all its customers. According to the
minutes of the meeting, drawn up by [Alken-Maes’s
management controller], the two competitors felt they
would need to study the “legal aspect” in the event that
they were to “begin together” on 1 January 1997 and
the two systems were to “resemble each other too
closely.” An internal Alken-Maes document on the
new pricing structure, dated 6 May, also refers to the
discussions with Interbrew.

On 7 May [the general manager of Alken-Maes]
instructed [Alken-Maes’s management controller] to
contact [Interbrew’s manager for the off-trade] as a
consequence of an agreement between [the general
manager of Alken-Maes] and [Interbrew’s general man-
ager for Belgium], on the basis of which [Interbrew’s
general manager for Belgium] had invited Alken-Maes

(110) Letter from Interbrew, 8.2.2000, and especially Annex 25 to
that letter (doc. 37614 7483, 7518); see also statement of
objections, paragraph 87.

(111) Heineken’s reply to request for information, 11.5.2000.
(112) Original English.
(113) Inspection at the offices of Alken-Maes, documents AvW11,
MV5 and FK2-13 (doc. 37614 00117-00120, 00404-00407,
00557-00563); Alken-Maes’s reply to request for information,
10.12.1999, and especially Annexes 33 and 34 to that reply
(doc. 37614 01391, 01953-01965); Interbrew’s reply to request
for information, 23.12.1999 (doc. 37614 02009); Annexes I.4
and I.5 to Interbrew letter of 14.1.2000 (doc. 37614 02613,
02617).

(114) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7882-7883).

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to acquaint itself with its [Interbrew’s] price list. [The
general manager of Alken-Maes] also told [Alken-
Maes’s management controller] that he would have to
analyse Interbrew’s system, and that Martichoux’s help
would no longer be required, since he wanted to use
“the same framework” and base himself on Interbrew’s
system.’ (115)

Maes’s management controller (117). Atthat meetingthere
was further discussion of the components of the pricing
system already described, and of the manner in which
customers were to be informed (118). [...].

(87)

From the minutes of themeeting drawn up by Alken-Maes
(preceding recital) (116), it appears that the new pricing
system Interbrew wanted to apply was built on three
components, or types of rebate: logistics, volume and
individual (depending on the particularcustomer). Clearly
there was agreement between the parties on a number of
principles, such as that the rebate was to depend on
volume, and that the purchase price paid by the on-trade
was always to be the same as or lower than [...] (the rebate
was always to be [...] % higher). There was also talk of
dividing the speciality beers into categories, each with
their own rebates, rather than a general rebate spread over
all speciality beers bought. In its observations on the
statement of objections, Danone argues that it is a fact of
the market that the prices paid by beer wholesalers will
always have to be [...] % lower than [...], because of the
extra services that beer wholesalers provide to on-trade
outlets. [...].

(88) As a result of this agreement between Interbrew and
Alken-Maes, a meeting took place in Mechelen on 30 May
1996 between Interbrew’s off-trade manager and Alken-

( 115) ‘Lors de cette réunion, les participants discutent des mérites d’un
tarif hiérarchisé, d’une politique de ristournes plus transparente
et des aspects logistiques de la nouvelle tarification. Il apparaît
qu’Alken-Maes est partisane d’un tarif logistique ouvert, alors
qu’Interbrew ne désire pas appliquer un tarif transparent vis-à-
vis de tous ses clients. Le procès-verbal de cette réunion, rédigé
par Monsieur ..., indique que les deux concurrents estiment
devoir examiner “l’aspect juridique” dans l’hypothèse où ils
“commenceraient ensemble” le 1er janvier 1997 et si les deux
systèmes “se ressemblent trop”. Un document interne d’Alken-
Maes du 6 mai concernant la nouvelle structure tarifaire se
réfère aussi à des discussions avec Interbrew. Le 7 mai,
Monsieur ...donne pour instruction à Monsieur ... de prendre
contact avec Monsieur ..., suite à un accord entre Messieurs ... et
... selon lequel ce dernier invite Alken-Maes à s’informer de son
tarif. Monsieur ... indique aussi à Monsieur ... qu’il doit analyser
le système d’Interbrew, et que l’aide de Martichoux n’est plus
nécessaire car il veut utiliser le “même cadre” et se baser sur le
système tarifaire d’Interbrew.’ See also statement of objections,
paragraph 88.

( 116) Inspection at the offices of Alken-Maes, document AvW11
(doc. 37614 00117-00120); see also statement of objections,
paragraph 89.

(89) A number of documents date from the period between
the meeting of 30 May and the next documented meeting
on 29 June. Concerning these documents Alken-Maes
states as follows (119):

‘On 11 June 1996 Interbrew wrote to all its customers,
including Alken-Maes, to advise them of the introduc-
tion of new general terms and a new pricing system
with effect from 1 January 1997. On 26 June a presen-
tation memo by Martichoux referred to contacts
between Alken-Maes and Interbrew, and analysed the
attitude Alken-Maes ought to take to Interbrew’s new
terms. An internal Alken-Maes memo dated 3 July,
drawn up by [Alken-Maes’s marketing manager], dis-
cussing the merits of delivered-to-premises and ex-
factory pricing, referred to comments made by
[Interbrew’s manager for the off-trade] regarding
Interbrew’s new pricing system. On 5 July Martichoux
made a presentation to Alken-Maes on the possibility
of introducing an ex-factory price ... On 25 July Alken-
Maes decided not to introduce an ex-factory price after
Interbrew had abandoned the idea.’ (120)

(117) Alken-Maes’s reply to request for information, 10.12.1999, and
especially Annexes 35 and 36 to that reply (doc. 37614 01391,
01966-01971); Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02010); Annexes I.4 and I.5 to
Interbrew letter of 14.1.2000 (doc. 37614, 02613, 02617); see
also statement of objections, paragraph 90.

(118) Inspection at the offices of Alken-Maes, documents AvW17,
3PS2 and MV7 (doc. 37614 00145-00147, 00354-00356,
00410-00412); letter from Alken-Maes, 7.3.2000 (doc. 37614
7883).

(119) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7883-7884),
with references to the following documents: inspection at the
offices of Alken-Maes, documents AVW36 (doc. 37614 00235-
00241) and MV8 to MV11 (doc. 00413-00459).

(120) Original French: ‘Le 11 juin, Interbrew écrit à tous ses clients,
dont Alken-Maes, pour leur signifier l’introduction de ses
nouvelles conditions générales et de sa nouvelle tarification au
1er janvier 1997. Le 26 juin, une note de présentation de
Martichoux se réfère à des contacts entre Alken-Maes et
Interbrew, et analyse l’attitude qu’Alken-Maes doit adopter face
aux nouvelles conditions d’Interbrew. Le 3 juillet, une note
interne d’Alken-Maes, rédigée par Monsieur ... concernant les
mérites respectifs d’un tarif “franco” et d’un tarif “départ”, fait
référence à des commentaires de Monsieur ...
(Interbrew)
concernant la nouvelle tarification d’Interbrew. Le 5 juillet,
Martichoux fait une présentation à Alken-Maes concernant la
possibilité d’introduire un “tarif départ” ... Le 25 juillet, Alken-
Maes décide de ne pas introduire de tarif “base départ” suite à
l’abandon du même projet par Interbrew.’ See also statement of
objections, paragraph 91.

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(90) The meeting of 29 July 1996 was attended by Interbrew’s
manager for the off-trade and Alken-Maes’s general man-
ager, marketing manager and management control-
ler (121). From the notes of the meeting kept by Alken-
Maes, it is clear that the rebate structure already men-
tioned was not the only subject discussed. There was also
talk of a transitional arrangement to apply when the new
terms were being introduced: ‘Guarantee: ... must be the
same amount in 1997 as in 1996 (in absolute fig-
ures)’ (122).

(91) On 19 September 1996 Alken-Maes decided to introduce
its new logistical system with effect from 1 July 1997. On
27 November 1996 Alken-Maes decided to explain the
new system by means of presentations to be organised
with the help of Martichoux. Following on from the
meeting of 19 September, Alken-Maes’s management
controller contacted Interbrew’s off-trade manager, on
9 December, to ask a number of questions Alken-Maes
had with regard to the pricing study (123).

(92) On 11 October Interbrew’s Chief Operating Officer Euro-
pe/Asia Pacific/Africa sent a fax to a member of one of the
families that owned shares in Interbrew. The subject was
day-to-day relations with Danone/Kronenbourg/Alken-
Maes (124): ‘We have been talking about a constructive
competition in Belgium since one year now. Fundamen-
tally nothing has happened. And most probably the
responsibility for this is shared. We will try to restart this
process in the following week’ (125).

4.3.2.5. 1 9 9 7

(93)

Summary

In 1997 contact seems to have grown less intense, prob-
ably in part because Interbrew had introduced its new

pricing system on 1 January. Alken-Maes ultimately laun-
ched its new pricing system some time after Interbrew,
which had not been the earlier intention.

(94)

Interbrew’s new pricing system entered into force on
1 January (126).

(95) On 17 April Interbrew’s Chief Operating Officer Europe/
Asia Pacific/Africa and general manager for Belgium met
the general manager of Danone’s beer division and the
general manager of Alken-Maes in Paris (127).

(96) Regarding this meeting on 17 April, the then general

manager of Interbrew has stated as follows (128):

‘There weretop-level meetings ... whichI did not attend.
After the top-level meetings wehad “instructions meet-
ings” which we all attended (general managers and
managers for the off-trade and the on-trade) ... The
meeting in Paris on 17 April 1997 was just one of
these instructions meetings with Danone (Danone was
represented by [the general manager of its beer div-
ision]). We (“Belgium” and “France”, but each separ-
ately) were to report on synergies. At that meeting
we went through profit and loss line by line, and
systematically examined how costs could be lowered
and profitability improved. Subjects discussed were:
(1) production; (2) joint distribution platforms; (3) dis-
counts on price to be given before or after excise
duties (this was also a CBB subject); (4) marketing and
investment in advertising (“share of voice”); (5) growth
of
increasing
volume ...’

the beer market, and methods of

( 121) Alken-Maes’s reply to request for information, 10.12.1999, and
especially Annexes 37 and 38 to that reply (doc. 37614 01373,
01383, 01972-01975); letter from Alken-Maes, 7.3.2000, and
especially Annex 42 to that letter (doc. 37614 7884, 8509-
8513); see also statement of objections, paragraph 92.

( 122) Annex 42 to Interbrew letter of 7.3.2000 (doc. 37614 8512).

Original Dutch.

( 123) Letter from Alken-Maes, 7.3.2000, and especially Annexes 42
and 43 to that letter (doc. 37614 7884, 8513, 8528-8530),
with references to the following documents: inspection at the
offices of Alken-Maes, document AvW19 (doc. 37614 00150-
00153) and document MV17 (doc. 37614 00532-00541); see
also statement of objections, paragraph 93.

( 124) Inspection at the offices of Interbrew, document MV18 (doc.
37614 8844-8845); see also statement of objections, para-
graph 94.
( 125) Original English.

(126) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7884).
(127) Inspection at the offices of Alken-Maes, document DvE6 (doc.
37614 00271); Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02010-02011, 02115) and especially
Annex B25 to that reply; Annexes I.1 and I.4 to Interbrew letter
of 14.1.2000 (doc. 37614 02595, 02613); Annex 10 to
Interbrew letter of 2.2.2000 (doc. 37614 7443); letter from
Interbrew, 8.2.2000, and especially Annex 32 to that letter (doc.
37614 7484, 7525);
letter from Interbrew, 28.2.2000, and
especially Annex 7 to that letter (doc. 37614 7553, 7589-
7592); letter from Alken-Maes, 7.3.2000 (doc. 37614 7884);
Annex 22 to Danone’s reply to request
information,
10.5.2000 (doc. 37614 9896-9898); see also statement of
objections, paragraph 97.

for

(128) Annex I.4 to Interbrew letter of 14.1.2000 (doc. 37614 02609-
02614); Annex 10 to Interbrew letter of 2.2.2000 (doc. 37614
7442-7447); see also statement of objections, paragraph 98.
Original Dutch.

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(97) An internal Alken-Maes memo of 25 June reports on
the actual implementation of the prices introduced by
Interbrew on 1 January, and the departures from those
prices observed in practice (129).

(98)

In another internal memo, dated 4 August, Alken-Maes
reviews the situation, and refers to possible difficulties
with the Belgian beer wholesalers’ federation in the event
that it were to change over to the new system of pri-
cing (130).

(99) By letter of 1 September 1997 Interbrew asked its cus-
tomers for their cooperation in an evaluation of its new
pricing system (131).

(100) In October Alken-Maes decided to introduce a new logis-
tical pricing method. Up to the end of November it carried
out simulation exercises for the new system of logistical
and commercial pricing (132). Alken-Maes’s management
controller states that there was no further cooperation
with Interbrew thereafter, i.e. after November 1997 (133).

4.3.2.6. 1 9 9 8

(101) Summary

At the beginning of 1998 there was a meeting between
Interbrew and Alken-Maes to take stock of several years’
cooperation. Achievements since the gentleman’s agree-
ment of 1994 were specifically detailed.After thismeeting
cooperation between Interbrew and Alken-Maes seems to
have come to an end.

(102) On 1 January 1998 Alken-Maes introduced its new logis-
tical pricing system. It launched its new commercial pri-
cing system on 1 January 1999 (134).

( 129) Inspection at the offices of Alken-Maes, document 2PS2 (doc.
37614 00318-00320); letter from Alken-Maes, 7.3.2000 (doc.
37614 7884-7885).

( 130) Inspection at the offices of Alken-Maes, document 2PS1 (doc.
37614 00316-00317); letter from Alken-Maes, 7.3.2000 (doc.
37614 7885).

( 131) Inspection at the offices of Alken-Maes, document AvW25 (doc.
37614 00208-00212); letter from Alken-Maes, 7.3.2000 (doc.
37614 7885).

( 132) ‘Logistical pricing’ means the aspect of pricing that is determined
‘logistical behaviour’, and is related to the costs
by customers’
incurred by the brewer that depend on that behaviour; a
customer might for example place a large number of small
orders, or only a few large orders. ‘Commercial pricing’ covers
the rest of the price.

( 133) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7885); see also

statement of objections, paragraph 102.

( 134) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7885).

(103) On 28 January 1998 Interbrew’s marketing manager for
Belgium and the marketing manager of Alken-Maes met
in Anderlecht in Brussels. The subject was the history of
relations between Interbrew and Alken-Maes (135).
Interbrew’s general manager for Belgium and off-trade
manager may also have been present at this meeting(136).

(104) The notes on this conversation kept by Interbrew’s mar-

keting manager for Belgium are as follows (137):

‘1.

Subjects

1. Organisation of consultations

2.

Current issues

on-trade

off-trade

...

Limburg

prices for cans

3. General issues

2.

Retroactivity 12 October 1994

— stop expensive attacks

— reduce unproductive expenditure

— stimulate beer consumption

achievements:

•

•

rebates on price net of excise

advertising credit vouchers adapted
[see also recital 147]

settlement of old disputes

Pricing

joint issues

(135) Interbrew’s reply to request for information, 23.12.1999, and
especially Annex II to that reply (doc. 37614 02011, 02015-
02016); Annex I.3 to Interbrew letter of 14.1.2000 (doc. 37614
02607-02608).

(136) Annex 21 to Alken-Maes’s reply to request for information,
10.12.1999 (doc. 37614 01859); Annex 12 to Interbrew letter
of 2.2.2000 (doc. 37614 7452); see also statement of objections,
paragraph 105.

(137) Annex II

to Interbrew’s reply to request
23.12.1999 (doc. 37614 02015-02016);
graph 106 of the statement of objections.

for information,
see also para-

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• maintenance of draught pumps

The representative of Alken-Maes at
writes (140):

that meeting

respect for other’s ties

no aggressivity pact

•

standardisation of packaging

not achieved:

•

•

•

regulation of investment

participation of other players

outside advertising

‘As you know, I was always cautious and sceptical of
Alken-Maes’s biggest competitor. The few conver-
sations referred to never led to any concrete results.’

4.3.3. The facts: supplementary statements

(106) In addition to the facts relating directly to particular
meetings or events, more general statements have been
submitted regarding what happenedin the period 1992 to
1998, both by Interbrew, or employees or former
employees of Interbrew who played an important role at
the time, and by Alken-Maes.

The on-trade objectives

4.3.3.1.

I n d i v i d u a l s t a t e m e n t s

“respect for ties and supply rights

regulation of investment

attitude/action on practices of small brewers and
private-labels ...”

3.

Consultation on on-trade

(107) Interbrew’s general manager for Belgium,

later Chief
Operating Officer Europe/Asia Pacific/Africa states as fol-
lows (141):

‘There were indeed regular contacts and meetings
between ITW and AM/Kronenbourg/Danone. ITW’s
intention was to create goodwill for Danone, with a
view to a merger or takeover of its beer business. The
strategy rested on talk, lots of talk, and agreed measures
that would allow value to be created jointly

— three times a year formal consultation with

...

agenda

— direct contact over difficult issues and com-
petition for national customers... (138)’

(105) On this point the then marketing manager for the on-

trade at Interbrew states as follows (139):

‘The item dated 28 January 1998 is my notes of a
meeting ... with ... the new marketing manager (on-
trade and off-trade) at AM. He clearly knew nothing
about the history. I had no further contact with AM
thereafter, and nothing came of the meeting. In 1998
neither AM nor ourselves were under pressure from
above, so nothing more happened.’

Measures to contain aggression/cost explosion (“Univ-
ersité de Lille”)

The initiative came from AM, and thus from Danone.
We in Belgium wanted some kind of balance with
France, where ITW was very weak. There was clearly
blackmail in terms of the French market. We were
afraid of retaliation in France. So we wanted to break
the link with France structurally, by working AM loose
from Danone. The issue was: what measures can we
take to contain the cost explosion jointly:

— investment in pubs

— promotions in the off-trade.

( 138) Original French: ‘respect des obligations et droit de livraison,
régulation des investissements, attitude/actions envers pratiques
petits brasseurs et private labels (...)’.

( 139) Annex I.3 to Interbrew letter of 14.1.2000 (doc. 37614 02607-
02608); see also statement of objections, paragraph 107.
Original Dutch.

(140) Annex 21 to Alken-Maes’s reply to request for information,
10.12.1999 (doc. 37614 01859); see also statement of objec-
tions, paragraph 107. Original Dutch.

(141) Annex I.1 to Interbrew letter of 14.1.2000 (doc. 37614 02586-
02590); see also statement of objections, paragraph 109.
Original Dutch.

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This was followed up by the marketing departments,
each with its opposite number. We met every two
months to discuss progress.

— marketing issues (e.g. value of coupon at pro-

motional events)

We achieved very little by way of results.

— advertising brochure frequencies (e.g. maximum

10 brochures for crates of beer at GIB).

In the on-trade, there were agreements on the “national
accounts” and on the restriction of investment, but [the
marketing manager for the on-trade in Belgium] never
succeeded in implementing them ...

In the off-trade, prices were set ([Interbrew’s off-trade
manager and later general manager for Belgium] with
[Alken-Maes’s marketing manager]), but these agree-
ments were not complied with either ...

As regards the pricing system, I did not deal with
that personally. I know there was consultation. The
objective at one stage was to do it together with AM,
but they were not ready. ITW went ahead, and AM
followed ...’

(108) Interbrew’s on-trade marketing manager for Belgium

states as follows (142):

‘The term “Université de Lille” originally stood for a
form of market behaviour in which we were expected
to behave like “gentlemen”. We would compete, but we
would not go too far. Much later it came to mean
keeping market relationships in Belgium balanced with
what was happening in France.’

(109) Interbrew’s manager for the off-trade, and later general

manager, states the following (143):

‘In the off-trade we achieved a lot, far more than in the
on-trade, where admittedly little or nothing happened.

In the off-trade there were agreements on:

— rebates on promotions aimed at the consumer

(e.g. 5 + 1 free)

[Alken-Maes’s marketing manager] was also keen to
see standardisation of packaging (joint responsibility
for the standardisation project at the CBB).

That did not prevent us from being very aggressive on
prices; competition was stiff, especially from 1994
onward. The Nielsen statistics are there to prove it.’

And in answer to a request for clarification he adds (144):

‘In the period (spring 1996) ... we were looking for
better waysto employ our marketingresources in order
to get our beer volume growing again.

Practical agreements:

— When we were promoting a multi-pack (a six-
pack for example) we would limit ourselves to
5 + 1 free, rather than 4 + 2, [...]. For speciality
beers the minimum was 3 + 1 (in a four-pack).

— At promotional events and tastings of our prod-
ucts in supermarkets and hypermarkets at week-
ends (openings, anniversaries) we would limit
ourselves to giving a BEF 30 price coupon
(= reduction at the check-out) ...

— In the same spirit, greater discipline was imposed
with regard to inserts in supermarkets’ advertising
brochures and the minimum promotion bro-
chure price (not shelf prices) (...) [...]. Advertising
brochure prices were already aggressive (as low as

( 142) Annex I.3 to Interbrew letter of 14.1.1999 (doc. 37614 02605-
02608); see also statement of objections, paragraph 110.
Original Dutch.

( 143) Annex I.4 to Interbrew letter of 14.1.2000 (doc. 37614 02610-
02614); see also statement of objections, paragraph 111.
Original Dutch.

(144) Annex 10 to Interbrew letter of 2.2.2000 (doc. 37614 7443-
7447); see also statement of objections, paragraph 111. Original
Dutch.

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BEF 249 for Maes), and we tried to avoid letting
them fall any further, and to secure a minimum
advertising brochure price from our customers.’

— market sharing in respect of national accounts,

(110) Interbrew’s off-trade manager, who had previously wor-
ked in the Belgian direct distribution department, states
as follows (145):

‘I learned that there were regular talks with Alken-Maes,
and that they regularly called one another. When I
asked whether this was in order legally, I was told by
[Interbrew’s general manager for Belgium] that this was
not a problem. I was also told that it was part of a bigger
Belgian-French story.’

— agreements on promotions in the food market,

— exchange of information about the structure of

the new tarification system (1996) (148).’

And in answer to a request for clarification, he adds, under
the heading ‘Agreeing an off-trade plan for promotional
pressure’ (146):

(112) Alken-Maes has admitted being involved in the following

at the end of 1994 (149):

‘As I explained earlier,there was discussion aboutpress-
ure of advertising brochures (the number of folders in
a given period), promotional price levels and number
of free gifts. From memory, and to the best of my
knowledge, in 1996 the subject was promotional pric-
es. In 1997 the subject was the number of brochures,
price levels and free gifts.’

4.3.3.2. G e n e r a l s t a t e m e n t s

(111) Interbrew has admitted the existence of the following

practices (147):

‘Collaboration with BSN (later Danone) and/or Kronen-
bourg about competitive behaviour and cooperation
on the Belgian market (as from about March 1993 to
January 1998) ... including:

— concerted measures in Horeca (reduction of
unproductive investments, reduction of adver-
tisement spendings, draught services...),

— respect of each other’s ties,

( 145) Annex I.5 to Interbrew letter of 14.1.2000 (doc. 37614 02616-
02618); see also statement of objections, paragraph 112.
Original Dutch.

( 146) Annex 12 to Interbrew letter of 2.2.2000 (doc. 37614 7451-

7454). Original Dutch.

( 147) Letter from Interbrew, 29.2.2000 (doc. 37614 7696-7697).

‘a pact providing for non-aggression, the reduction of
marketing investment in the on-trade and in outside
advertising, and concerted pricing. Proper implemen-
tation of the agreement seems to have been the subject
of a procedure for regular consultation between the
senior managers of the two companies.’ (150)

‘Numerous meetings took place between executives of
Alken-Maes, notably [the general manager], who was
managing director between 1992 and 1998, and
executives of Interbrew, especially [the successive gen-
eral managers], at which there was concertation about
the distribution and sale of beer in Belgium.’ (151)

(148) Original English.
(149) Letter from Alken-Maes, 27.12.1999 (doc. 37614 02521-
02523); letter from Alken-Maes, 7.3.2000 (doc. 37614 7880).
(150) Original French: ‘un pacte de non-agression, de limitation des
investissements commerciaux dans le domaine de l’horeca et de
la publicité extérieure, et une concertation tarifaire. La bonne
application de l’accord aurait fait l’objet d’une procédure de
consultation régulière directement entre les dirigeants des deux
sociétés.’

(151) Original French: ‘Il y a eu de nombreuses réunions entre des
collaborateurs d’Alken-Maes et principalement Monsieur ...,
alors administrateur délégué, entre 1992 et 1998 avec des
collaborateurs d’Interbrew, principalement Messieurs ... et ...,
durant lesquelles la distribution et la vente de bière en Belgique
ont
l’objet d’une concertation’; see also statement of
objections, paragraph 114.

fait

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4.4. Bilateral exchange of information between
Interbrew and Alken-Maes

(113) Summary

From a large number of documents it is clear that
Interbrew and Alken-Maes exchangeddetailed sales infor-
mation on a monthly basis (152). Alken-Maes and
employees of Interbrew have stated that this exchange
began at the initiative of Interbrew (153). According to
both Interbrew and Alken-Maes, the exchange of infor-
mation started no later than the end of 1991, on the basis
of an oral agreement. The designated contacts at Alken-
Maes and Interbrew exchanged the information by tele-
phone (154). The information exchange system that oper-
ated between Interbrew and Alken-Maes assisted their
implementation of the agreements described above (sec-
tion 4.3).

(114) It is not clear exactly when the exchange of information
began. The statements do not correspond. Some indicate
that it began as early as 1989 (155); but in any event the
Commission has evidence that it started no later than
the end of 1991. According to Interbrew, it began in
December 1991, and accordingto Alken-Maes in Novem-
ber 1991. The first information exchanged concerned
changes in total sales of Pils and non-alcoholic beer to the
on-trade and off-trade together, in percentages, in Nov-
ember or October 1991 (156).

(115) From April 1992 onward figures were also exchanged for
volumes, and not just for percentage changes, for Pils,

( 152) Inspection at the offices of Alken-Maes, documents FK2-1 (doc.
37614 00597), NvHR 4 to 26 (doc. 37614 00599-01038);
Annexes 1 to 11 to Alken-Maes’s reply to request for infor-
mation, 10.12.1999 (doc. 37614 01406-01845); Annexes III
and A 1 to 3 to Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02017-02029).

( 153) Annex I.1 to Interbrew letter of 14.1.2000 (doc. 37614 02587)
and Annex 18 to Interbrew letter of 28.2.2000 (doc. 37614
07682); letter from Alken-Maes, 7.3.2000 (doc. 37614 07868-
07885).

( 154) Alken-Maes’s reply to request

for information, 10.12.1999
(doc. 37614 01370-01374); Interbrew’s reply to request for
information, 23.12.1999 (doc. 37614 01982-01983).

( 155) Annexes I.5 and I.6 to Interbrew letter of 14.1.2000 (doc.

37614 02615-02622).

( 156) Alken-Maes’s reply to request

for information, 10.12.1999
(doc. 37614 01370-01371); Interbrew’s reply to request for
information, 23.12.1999, and especially Annex A.1 to that
reply (doc. 37614 01982, 02022).

non-alcoholic beer and light (low-alcohol) beer. Sales
were also broken down by distribution channel (identified
by the English terms ‘food’ (the off-trade) and ‘trad.’ (‘tra-
ditional’, the on-trade), and form of packaging (‘barrels’
and ‘others’). On 22 April 1992, for example, Interbrew’s
figures for March 1992 were circulated (157). These were
followed by back sales figures for 1991 (158).

(116) No later than October 1992 monthly information was
being exchanged on sales by volume in all segments (159).
Figures for September 1992 were circulated within
Interbrew on 15 October (160). The time-lag of two weeks
between the end of the month and the exchange of infor-
mation in respect of that month was maintained until the
exchange of information came to an end (161).

(117) From April 1994 the figures for Interbrew no longer
include volumes brewed by Interbrew under licence and
sold by other parties (that is to say the Carlsberg and
Tuborg brands) (162).

(118) From 1997 the figures distinguish between the brands
belonging to the brewers themselves and beer produced
by them under distributors’ own brands (‘private-
labels’) (163).

(119) On 8 September 1997 a meeting took place between
Alken-Maes’s management controller and the marketing
information managerand another marketing executive of
Interbrew, at which the exchange of information was
discussed (164). Regarding this meeting Alken-Maes states
as follows (165):

‘on 8 September 1997, at the request of [Alken-Maes’s
general manager], [Alken-Maes’s management control-

(157) Annex A.2 to Interbrew’s reply to request for information,

23.12.1999 (doc. 37614 02023-02024).

(158) Alken-Maes’s reply to request for information, 10.12.1999
(doc. 37614 01371); inspection at the offices of Alken-Maes,
document NvHR26 (doc. 37614 01033-01038).

(159) Pils, non-alcoholic beers, light beers, table beers, premium Pils,
amber ales, abbey and Trappist beers, gueuze and fruit beers,
sour beers, white beers, strong golden ales, regional beers, and
English-style ales.

(160) Annex A.3 to Interbrew’s reply to request for information,

23.12.1999 (doc. 37614 02025-02029).

(161) See Annex III to Interbrew’s reply to request for information,
the memo is dated 12.7.1999, and concerns

23.12.1999;
information for June 1999 (doc. 37614 02017-02021).
(162) Alken-Maes’s reply to request for information, 10.12.1999, and
especially Annex 10 to that reply (doc. 37614 01371 and
01834).

(163) Alken-Maes’s reply to request for information, 10.12.1999, and
especially Annex 11 to that reply (doc. 37614 01371 and
01842-01845).

(164) Alken-Maes’s reply to request for information, 10.12.1999, and
reply (doc. 37614 01373-

especially Annex 40 to that
01374 and 01978).

(165) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7848-7865).

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ler] met [Interbrew’s marketing information manager
and another marketing executive of Interbrew] at the
restaurant Le Roi d’Espagne in Brussels in order to
consider the best way of showing sales of private-
labels in the statistics exchanged every month between
Interbrew and Alken-Maes. During the meeting the
general segmentation of the data was also discussed.
According to [Alken-Maes’s management controller]
this meeting followed Interbrew’s entry into the pri-
vate-label beer segment. Interbrew wanted to be able to
monitor the movement of its share of sales in this
segment, where it believed it could achieve the same
market share as it had for sales of beer under its own
brands.’ (166)

objective was to obtain faster and more accurate infor-
mation for both the on-trade and the off-trade ... There
were other statistics available on the market, but they
were less reliable and also slower ... There were also the
statistics we received from the CBB. But these were
much slower, because they were only three-monthly.
The figures were never discussed as such with AM. A
general commentary on the trend was given from time
to time. This was against the background of our agree-
ment with [the chairman and general manager of
Danone] that it was in our interest “to approach the
market calmly”. Thus we looked at these figures to
consider whether ITW was doing well in a particular
area, and AM less well, etc.’

(120) From various documents it is clear that there was repeated
telephone contact in order to optimise the exchange of
information (167). At the beginning of 1999, for example,
there was contact regarding a further breakdown of the
figure for Pils by type of packaging. Initially agreement
was
reached between the marketing managers of
Interbrew and Alken-Maes. But this oral agreement was
never put into effect.

(123) In response to more detailed questions which the Com-
mission put to Interbrew by fax of 21 January 2000 (170),
this statement was clarified as follows. To the question
whether the exchange of information was used to monitor
compliance with agreements with Alken-Maes,
the
answer was (171):

(121) By letter of 5 November 1999 Alken-Maes told Interbrew
that ‘on 27 October 1999 we decided to stop notifying
our monthly sales figures’ (168).

(122) Interbrew’s former general manager for Belgium states as
follows with regard to the exchange of information (169):

‘No. Although Kronenbourg had asked for agreements
on market shares, no such agreementswere concluded.
Thus no monitoring was necessary. Nor did the fact
that a general commentary was given mean that
internal instructions were issued on the basis of the
figures. These were commentaries on the figures. They
were never linked to action.’

‘As far as I can remember this system was set up by [the
then general manager for Belgium] in 1992 ... The

(124) Interbrew’s manager for the off-trade, later general man-

ager for Belgium, has stated as follows (172):

( 166) Original French: ‘le 8 septembre 1997, suite à la demande de
Monsieur ..., Monsieur ... a rencontré Messieurs ... et ... d’Inter-
brew au restaurant Le Roi d’Espagne à Bruxelles afin d’examiner
la meilleure façon de prendre en compte les ventes des produits
sous marques de distributeurs dans les données statistiques
échangées mensuellement entre Interbrew et Alken-Maes. Lors
de cette rencontre, la segmentation générale des données a aussi
été discutée. D’après Monsieur ..., cette réunion fait suite à
l’entrée par Interbrew dans le segment de la production de bière
vendue sous des marques de distributeurs. Interbrew désirait
pouvoir suivre l’évolution de sa part des ventes dans ce segment,
dans lequel elle espérait obtenir la même part que pour ses
ventes de bière sous ses marques propres.’ See also statement of
objections, paragraph 121.

( 167) Inspection at the offices of Alken-Maes, document NvHR26

‘I was aware of the system of exchange between ITW
and AM. We looked forward to it, because it was
practical and quick ... We sifted the information as
carefully as possible in order to obtain good market
intelligence. We knew our market share in Belgium to
within a tenth of a percentage point. The information
we obtained was very important. We looked at that
information first, then at the CBB’s figures, and then at
Nielsen’s, where they existed. For market estimates we
used the exchanged information most of all. But the

(doc. 37614 00963-00965).

(170) Fax from European Commission, 21.1.2000 (doc. 37614

( 168) Annex to Alken-Maes letter of 5.11.1999 to European Com-
mission (doc. 37614 01343-01345). Original Dutch: ‘dat we
op 27 oktober 1999 hebben beslist het mededelen van onze
maandelijkse verkoopcijfers stop te zetten’.

( 169) Annex I.1 to Interbrew letter of 14.1.2000 to European
Commission (doc. 37614 02586-02587); see also statement of
objections, paragraph 124. Original Dutch.

02675-02681).

(171) Annex 2 to Interbrew letter to European Commission, 2.2.2000
(doc. 37614 7333-7337); see also statement of objections,
paragraph 125. Original Dutch.

(172) Annex I.4 to Interbrew letter

to European Commission,
14.1.2000 (doc. 37614 02610-02611); see also statement of
objections, paragraph 126. Original Dutch.

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information did not influence any decisions. The big
competitor was not AM but the private-labels.’

first meetingunder the new name discussed the harmonis-
ation of the existing pricing structures for deliveries to the
off-trade in Belgium and abroad. As regards the on-trade,
it was agreed that rebates should be calculated in the same
way as they were in the off-trade (178).

(125) Interbrew has admitted (173) the existence of ‘Exchanges
of information with Alken-Maes: total volumes of sales of
beer on the Belgian market (December 1991); monthly
exchanges on volumes for Pils and non-alcoholics (as
from early 1992). As from October 1992 until November
1999: monthly exchanges of information on all segments
(volumes).’ (174)

4.5. The CBB meetings

(126) Summary

In the period from October 1990 to June 1997 there
were numerous meetings of working parties in which the
members of the CBB discussed the pricing structure and
other joint measures. The meetings in question were pri-
marily meetings of the Working Party on Pricing Struc-
tures, and its successors ‘Vision 2000’ and the Market
Policy Committee. On the Vision 2000 working party,
the Market Policy Committee and the subgroups they set
up Interbrew and Alken-Maes played a leading role.

(127) Up to August 1993 various discussions took place in the
CBB’s Working Party on Pricing Structures. In 1990 and
1991 the working party met about ten times. It seems to
have been less active in 1992 and the first half of
1993 (175). For most of this time the chairman was an
Interbrew employee. Alken-Maes was represented by a
sales manager (176).

(129) The meeting of the working party on 15 October 1993
considered the possibility of having a study carried out in
order toarrive at ‘a better understanding of possiblefuture
developments in the beer wholesale structure and the on-
trade’
and ‘to study one-off problems: parallel
imports’ (179). CBB documents of 9 and 12 November
1993 describe later tasks of the ‘Scenario 2000’ project.
The documents mention the following background fac-
tors among others:

‘2. Opening of EEC borders

Consequence:

— changes in price structure

— parallel importing

— foreign interference.

3.

Professional differences — Comparing Belgium
with our neighbours the Netherlands and France

The stated objectives of the project include “An
understanding of present and future changes in
beer wholesaling and the on-trade in Belgium, to
enable us as brewers to develop our marketing
strategy in the medium term.” (180)’.

(128) From the meeting held on 4 August 1993 onward, the
Working Party on Pricing Structures was known as ‘Vision
2000’. It consisted of Interbrew’s manager for the off-
trade, two employees of Alken-Maes, the marketing man-
ager of Haacht, and an employee of the CBB (177). This

(130) The project was finally carried out for the CBB by Arthur
D. Little. The study ‘Scenario 2000’ compared the Belgian
market with the Dutch and French markets, with regard
to such things as pricing, the distribution system, invest-
ment in the on-trade and the profit margins of beer
wholesalers in Belgium, the Netherlands and France (181).

( 173) Letter from Interbrew, 29.2.2000, with an Annexed statement
by the company dated 28.2.2000 (doc. 37614 7689-7700).

( 174) Original English.
( 175) Letter from Alken-Maes, 7.3.2000, and especially Annexes 1 to

30 to that letter (doc. 37614 7873-7879, 7889-8064).

( 176) See also statement of objections, paragraph 129.
( 177) See also statement of objections, paragraph 130.

(178) Letter from Alken-Maes, 7.3.2000, and especially Annex 31 to

that letter (doc. 37614 7879, 8065-8067).

(179) Inspection at the offices of the CBB, document ROK18 (doc.

37614 01275-01283). Original Dutch.

(180) Inspection at the offices of the CBB, document ROK16 (doc.
37614 01268-01272); Annex 32 to Alken-Maes letter of
7.3.2000 (doc. 37614 8069-8072). Original Dutch.

(181) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7879).

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(131) The Vision 2000 working party supervised the project. It
met for the purpose on 17 January (182), 22 February (183),
24 May (184) and 25 August 1994 (185).

(135) The results of the Scenario 2000 study were presented to

the CBB by Arthur D. Little on 22 November 1994 (191).

(132) In the minutes of the CBB board of directors meeting on
21 September 1994, under the heading ‘Vision 2000’, we
read the following: ‘The chairman reminded the meeting
that against the background of the opening up of borders
and the growth in parallel trade, the board had decided to
ask Arthur D. Little for a report on the pricing structure in
Belgium and the neighbouring countries.’ (186) On
26 October 1994 the board discussed the Arthur D. Little
report in more detail (187).

(133) From various documents it is clear that Interbrew and
Alken-Maes, in the context of their bilateral contacts,
acted together in the CBB and saw the advantages of
taking certain initiatives through the organisation.
According to an internal Interbrew document reporting
on a meeting with Alken-Maes on 29 August 1994 (188):

‘3. We agreed that discussion in the CBB on the Arthur
D. Little Horeca 2000 project can be a good forum to
study ways and means to reduce the cost of doing
business in Horeca.’ (189)

(134) A number of other documents dealing mainly with the
agreements between Interbrew and Alken-Maes make
reference to the possibility that the two breweries might
realise part of their joint objectives and agreements
through the CBB (190).

( 182) Inspection at the offices of the CBB, document ROK15 (doc.

37614 01266-01267).

( 183) Inspection at the offices of the CBB, documents ROK 13 (doc.
37614 01255) en ROK14 (doc. 37614 01256-01265).
( 184) Inspection at the offices of the CBB, document ROK12 (doc.

37614 01230-01254).

( 185) Inspection at the offices of the CBB, document ROK10 (doc.

37614 01222-01224).

(136) The working party met again on 12 December 1994. The
Arthur D. Little report served as a point of departure for
further discussion. The meeting considered the role of the
various players in the distribution chain, the associated
returns and prices, and investment
in promotion
materials for on-tradesales outlets, whichit was suggested
should be based on purchases of beer in barrels (192).

(137) The working party met on 17 (193) and 31 January 1995.
At the 31 January meeting a number of subgroups were
set up to look at six practical areas, including (194):

‘... 4.

Investment in publicity materials (glasses and
beer mats)

(chairman: [Alken-Maes’s on-trade manager])

Objective:

— to avoid competition in this area

— harmonisation

5.

Management of delivered-to-premises and ex-
factory pricing

(chairman: [Alken-Maes’s general manager])

Objective:

— situation in neighbouring countries

— to “finalise” the logistical charge

— to set standards for transport

( 186) Annex 12 to CBB’s reply to request for information, 24.12.1999

(191) Annex 36 to Alken-Maes letter of 7.3.2000 (doc. 37614 8363-

(doc. 37614 02226). Original Dutch.

( 187) Annex 12 to CBB’s reply to request for information, 24.12.1999

(doc. 37614 02222).

( 188) Annex II

to Interbrew’s reply to request

for information,

23.12.1999 (doc. 37614 02014); see also recital 58 above.

( 189) Original English.
( 190) Annexes B5, B9 and B11 to Interbrew’s reply to request for
information, 23.12.1999 (doc. 37614 02041-02043, 02062-
02063, 02066); see also recitals 58 and 66 above.

8443).

(192) Inspection at the offices of the CBB, document ROK8 (doc.
37614 01214-01216); inspection at the offices of Interbrew,
document MV11 (doc. 37614 8802-8804).

(193) Annex 15 to CBB’s reply to request for information, 24.12.1999

(doc. 37614 02493).

(194) Inspection at the offices of the CBB, document ROK7 (doc.
37614 01211-01213); letter from Alken-Maes, 7.3.2000 (doc.
37614 7880); see also statement of objections, paragraph 139.

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6.

Investment in sales outlets

(chairmen: [Interbrew’s marketing manager for
the on-trade in Belgium and Alken-Maes’s on-
trade manager])

Objective:

— practical recommendations

— problems and possibilities’ (195)

(138) On 25 January a more general document entitled ‘Vision’
was circulated for discussion at the meeting on 15 Februa-
ry. The objectives of the working party were described as
follows (196):

‘To define the role of each link in the distribution chain

To define a framework in which each partner receives a
fair price in proportion to the role it actually plays.’ (197)

(139) In connection with the work of subgroup 5, which was
chaired byAlken-Maes’s general manager, a questionnaire
concerning logistical arrangements was sent toInterbrew,
Alken-Maes, Haacht, Palm, Silly and Moortgat on 16 Feb-
ruary 1995, immediately after the working party meeting
of 15 February referred to in recital 138 (198).

(140) Subgroup 6, on investment in sales outlets, resumed the
examination of the harmonisation of the level of invest-
ment in the on-trade which had been begun earlier by the
Working Party on Price Structures. The subgroup secured
the services of the consultant Opdebeeck (199).

(141) On 30 March there was another meeting of the Vision
2000 working party. From the reports made on the work
of the subgroups it emerges that the plans of subgroup 4,

( 195) Original French: ‘4. Investissements dans les articles publicitaires:
(verres et sous-bocs), (Président: ...), But: *éviter la concurrence
dans ce domaine, *harmonisation, 5. Gestion de la tarification
franco/enlèvement, (Président: ...), But: *situation dans les pays
limitrophes et possibilité d’harmonisation, *“mise au point” des
indemnités logistiques, *fixation des normes pour transporteurs,
6. Investissements dans des points de vente: (Présidents: ... et ...),
But: *recommandations concrètes, *problèmes et opportunités’.
( 196) Annex 15 to CBB’s reply to request for information, 24.12.1999

(doc. 37614 02493-02513).

( 197) Original French: ‘Établir le rôle de chaque maillon de la chaîne
de distribution; Établir un cadre qui rémunérera correctement
chaque partenaire en fonction du rôle effectif qu’il joue’.
( 198) Annexes 14 and 15 to CBB’s reply to request for information,
24.12.1999 (doc. 37614 02490-02513);
letter from Alken-
Maes, 7.3.2000, and especially Annex 38 to that letter (doc.
37614, 7880, 8444-8493); see also statement of objections,
paragraph 140.

( 199) Letter from Alken-Maes, 7.3.2000 (doc. 37614 7880).

on investment in publicity materials, were beginning to
take practical shape, and that subgroup 5, on delivered-
to-premises and ex-factory pricing, had suspended its
proceedings to allow the members a period of reflec-
tion (200).

(142) The proceedings of the Vision 2000 working party were
discussed at a meeting on 18 April 1995, at which
Interbrew was represented by its general manager for
Belgium,
its marketing manager for the on-trade in
Belgium and its off-trade manager, and Alken-Maes was
represented by its general manager, its on-trade manager
and its off-trade manager (201).

(143) The Vision 2000 working party met again on 7 July
1995 (202). The meeting discussed the recommendations
of subgroup 4, on investment in publicity material, and
approved them unanimously. The most important rec-
ommendation was that the brewers ought to apply a
standard investment of BEF 60 per hectolitre. The activi-
ties of subgroup 5, on delivered-to-premises and ex-fac-
tory pricing, were still suspended. In subgroup 6, on
investment in sales outlets, there was agreement that
investment ought to be rationalised jointly, but disagree-
ment on the procedure to be followed.

(144) A new feature is that consideration was also given to the
restriction of outside advertising. A separate subgroup
was set up to look at this, chaired by the general manager
of Alken-Maes. The report includes the observation ‘The
measures referred to in this document can be considered
only provided they are in line with Belgian and European
legislation’ (203).

(145) In July 1995 Alken-Maes received a copy of a memo
presenting Interbrew’s new marketing policy, which had
been sent by Interbrew’s off-trade manager to the
CBB (204). The memo explains the current pricing struc-
ture at Interbrew and its disadvantages, and concludes
that a new pricing structure is needed. The objective of
the proposal is said to be ‘price competition at a higher

(200) Inspection at the offices of the CBB, document ROK6 (doc.

37614 01208-01210).

(201) Annex B19 to Interbrew’s reply to request for information,
23.12.1999 (doc. 37614 02093); see also recital 73 above; see
also statement of objections, paragraph 143.

(202) Inspection at the offices of the CBB, document ROK5 (doc.

37614 01200-01207).

(203) Original French: ‘Les mesures reprises dans ce document ne
pourront être envisagées que sous réserve de leur conformité à
la législation belge et européenne.’ See also statement of
objections, paragraph 144.

(204) Inspection at the offices of Alken-Maes, document MV12 (doc.
37614 00460-00471); letter from Alken-Maes, 7.3.2000 (doc.
37614 7881); see also statement of objections, paragraph 145.
Original Dutch.

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level’. It is alsosaid to be a basic condition for success that
‘all Belgian beer suppliers work in an identical manner
(CBB)’.

(146) According to a statement by Interbrew’s then manager for
the off-trade, the memo referred to in recital 145 dates
from 8 December 1994 and, after discussion with clients,
was presentedto the members of the CBB as well. Through
this channel it also served as a basis for discussion in the
CBB committees and elsewhere (205).

(147) At the meeting of the Market Policy Committee on 9 Janu-
ary 1996 the members confirmed once again that it had
been decided that publicity material would be supplied on
the basis of the number of hectolitres, no distinction
being made between Pils and speciality beers, and that a
proposal would be ready by the end of February (206).
Interbrew’s then manager for the on-trade in Belgium
states the following (207):

‘A number of points was allocated per hl or per barrel.
This conferred a proportional entitlement to publicity
material. The question was also discussed in the CBB.’

This system was known as the ‘publicity credit voucher’
system (publicitair krediet bon — ‘PKB’).

(148) The next meeting was on 12 March 1996. It emerged at
this meeting that the Haacht brewery no longer wished to
discuss investment in sales outlets or the development of
a uniform system of calculation for that purpose. The
report of the meeting urged that the working party on
outside advertising be relaunched, in view of the possi-
bility of securing efficiencies (208).

reasonable to suppose that
the two brewers were
Interbrew and Alken-Maes. The question was asked
whether there was still interest in the working party, or
whether it should be brought to an end. As regards the
subgroup on investment in publicity material,
it was
observed that the project had been put to the CBB board
of directors, and might be launched by 1 January 1997 at
the latest. The subgroup considering outside advertising
announced that it would be submitting practical pro-
posals at the following meeting (210).

(151) The board of directors of the CBB met on 18 September
1996, and discussed the progress of the Market Policy
Committee at some length (211).

(152) The Market Policy Committee met on 14 November
1996, and once again reviewed the progress of the various
subgroups (212).

(153) The meeting of the committee on 5 February 1997 dis-
cussed various items, including the proposals on outside
advertising. The objective was to arrive at common stan-
dards (213).

(154) The last meeting of the Market Policy Committee for
which any evidence is available took place on 13 May
1997. It was stated that a decision had been taken on
investment in publicity material, that Alken-Maes would
be sending a letter to publicans on 1 July 1997, and
that the other brewers would follow. The participants
therefore felt that there was no need for the point to
reappear on the agenda.

(155) As regards the questions that had been discussed in the
subgroups looking at investment in sales outlets and
outside advertising, it was noted that unanimity had not
been achieved (214).

(149) The meeting on 23 May 1996 once again reviewed pro-

gress in all subgroups (209).

4.6. The private-label agreements (215)

(150) The CBB Market Policy Committee met again on 9 Sep-
the subgroups was
tember 1996. The progress of
reviewed. In the case of the subgroup on investment in
sales outlets, it emerged that only two of the original six
brewers were prepared to continue. It is not known which
brewers these were. In the light of previous history it is

(156) Summary

There were a number of meetings at which the market
situation with regard to private-label beer in Belgium
was discussed, and information exchanged. None of the
parties deny that meetings took place. Butthe information

( 205) Annex 11 to Interbrew letter of 2.2.2000 (doc. 37614 7449);

(210) Inspection at the offices of the CBB, documents WJ1, WJ2 (doc.
37614 1074-1077) and CD7 (doc. 37614 01151-01155).
(211) Inspection at the offices of the CBB, document WJ1 (doc. 37614

see also statement of objections, paragraph 145.

01071-01073).

( 206) Inspection at the offices of the CBB, document CD2 (doc. 37614

(212) Inspection at the offices of the CBB, document WJ9 (doc. 37614

01126-01127).

( 207) Annex I.3 to Interbrew letter of 14.1.2000 (doc. 37614 02608);
see also statement of objections, paragraph 146. Original Dutch.
( 208) Inspection at the offices of the CBB, documents CD1 and CD3

(doc. 37614 01125, 01128-01135).

( 209) Inspection at the offices of the CBB, documents WJ3 (doc.

37614 01076-01077) and CD4 (doc. 37614 01136-01141).

01089-01090).

(213) Inspection at the offices of the CBB, document CD8 (doc. 37614

01156-01161).

(214) Inspection at the offices of the CBB, document WJ6 (doc. 37614
01082-01084), CD 9 and CD 10 (doc. 37614 01162-01168).
(215) These agreements are discussed here to the extent that they

relate to deliveries of private-label beer on the Belgian market.

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supplied is contradictory. The details therefore cannot be
established with absolute certainty. It is not even certain
exactly how many meetings took place; but there were in
any event no less than the four described below (216).

(157) Interbrew’s then manager for the off-trade, subsequently
general manager for Belgium, who was present at the
meetings, has stated the following (218):

Date

Present

Place

Autumn/winter
1997 (probably
9 October
1997)

Interbrew: off-trade manager Holiday Inn,

Diegem,
Belgium

Alken-Maes: off-trade man-
ager

Haacht: marketing and off-tra-
de manager

Martens: managing director

Spring 1998

Interbrew: off-trade manager

Alken-Maes: off-trade man-
ager

Haacht: marketing and off-tra-
de manager

Martens: managing director

Elewijt Busi-
ness Center,
Zemst,
Belgium

1998 Interbrew: off-trade manager Novotel,

Spring
(probably
15 June 1998)

Breda, Neth-
erlands

Alken-Maes: off-trade man-
ager

Haacht: marketing and off-tra-
de manager

Martens: managing director

Representatives of two Dutch
brewers (217)

Summer 1998 Interbrew: manager, off-trade Novotel,
(probably 7 July
1998)

Breda, Neth-
erlands

Alken-Maes: manager, off-
trade

Haacht: manager, marketing
and off-trade

Martens: managing director

Representatives of two Dutch
brewers

‘There were also meetings between private-label brew-
ers. This was at the initiative of [Interbrew’s general
manager for Belgium] and [the general manager of
Alken-Maes] ...’

‘The first meeting took place at the Holiday Inn in
Diegem on 9 October 1997, on the instructions of
[Interbrew’s general manager for Belgium] ... The pur-
pose of the meetings was to map out the private-
label beer market in Belgium. The following data was
supplied (example) [there follows an imaginary table,
with the column headings:] product, volume, cus-
tomer, type of contract, brewer, price ... I am not sure
that the information provided for in the last column
was actually exchanged, but that was certainly the
intention. The object was that whenever there was a
new invitation to tender there would be no under-
cutting of prices between the four brewers. The brewer
who had the contract would bid his price, and the
others would make a higher bid ... Because consultation
stopped, no adjustments were made, except that
Interbrew failed to bid for a particular Aldi contract.
The Aldi contract was with one of the other brewers,
from memory I think Martens ...’

‘At the request of [the managing director of Martens],
who also makes sales in the Netherlands, a meeting was
convened between the four Belgian brewers and two
Dutch brewers ... [The managing director of Martens]
was prepared to go on talking in Belgium only if the
same thing was done in other markets where Martens
supplied private-labels, namely the Netherlands and
Germany. Interbrew Belgium acted as a go-between
here ...’

‘The whole thing was stopped because the participants
decided it was too dangerous.’

( 216) Annex I.5 to Interbrew letter of 14.1.2000 (doc. 37614 02615-
02618); Annexes 12 and 13 to Interbrew letter of 2.2.2000
(doc. 37614 7450-7456); replies to requests for information
from Alken-Maes, 5.4.2000 (doc. 37614 8920-8934), Haacht,
5.4.2000 (doc. 37614 8951-8952), and Martens, 6.4.2000
(doc. 37614 8953-8954); see also statement of objections,
paragraph 154.

( 217) For reasonsof confidentiality the names of the twoDutch breweri-
es and their representatives are not given in this Decision.

(158) Alken-Maes, Haacht and Martens all say that the meetings
were intended to discuss the sorting charge, that is to say
a charge payable to retailers for handling empty bottles in

(218) Annex I.5 to Interbrew letter of 14.1.2000 (doc. 37614 02615-
02618); Annexes 12 and 13 to Interbrew letter of 2.2.2000
(doc. 37614 7450-7456); see also statement of objections,
paragraph 155. Original Dutch.

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crates; Haacht adds that they were also to discuss the
growing importance of retailers’ own labels and the bully-
ing attitude of the big multiples (219).

5. THE PARTIES’ WRITTEN OBSERVATIONS
ON THE STATEMENT OF OBJECTIONS

(159) Haacht states as follows (220):

5.1. Danone and Alken-Maes

‘the differences between the prices of A-labels and
private-labels was growing ... constantly greater, and
there was an urgent need for an exchange of views on
the situation with a few brewers in the Benelux.’

(162) In its written response to the statement of objections
Danone makes the following observations. Alken-Maes
indicates that it wishes to be associated with Danone’s
view of the matter.

On the meetings in the Netherlands:

5.1.1. The bilateral agreements between Interbrew and

Alken-Maes

‘we were not active on the Dutch market, and so we
had no real interest. Information was exchanged on
customers, packaging and volumes ...’

‘The conclusion that came out of the meetings was that
we should take a firmer line on prices, which were
already being quoted very low, but this never hap-
pened, because the falling price spiral was not halted.’

(160) According to statements made by Alken-Maes (221), ‘Each
participant took his own notes of volumes, types of prod-
uct and producers. As regards the Dutch market, any
exchange of information was refused.’ At the last of these
four meetings: ‘There was discussion of developments on
the market in retailers’ own labels in the big multiple
chains. I [the marketing manager of Alken-Maes (222)]
noted that there was a great deal of mistrust between the
different firms at the meeting. My personal conclusion
therefore was that the meeting was pointless.’

(161) Interbrew has acknowledged (223) that it was a party to
an ‘agreement on price level and market sharing in the
private-label market (1997 to 1998).’ (224)

( 219) See footnote 216.
( 220) See footnote 216. Original Dutch.
( 221) Annexes 3 and 4 to Alken-Maes’s reply to request for infor-
mation, 5.4.2000 (doc. 37614 8930-8934). Original Dutch.

( 222) See also statement of objections, paragraph 158.
( 223) Letter from Interbrew, 29.2.2000 (doc. 37614 7697).
( 224) Original English.

(163) T h e

s u p p o s e d

l i n k w i t h

t h e

F r e n c h

m a r k e t

Danone argues, first of all, that the Commission accepts
that Interbrew was being threatened by Danone in France
even though it is not clear from the file that any investi-
gation was carried out at the relevant time into the situ-
ation on the French market. This infringes Danone’s right
to defend itself.

(164) Danone in any event denies that it demanded that
Interbrew transfer 500 000 hl to Alken-Maes in 1994 and
threatened that otherwise matters would be made difficult
for Interbrew on the French market (recital 53). Danone
submits that this allegation rests entirely on statements
made by Interbrew employees in 2000 (recital 54). None
of the documents dating from 1994 show that there was
any such demand or any such threat. Danone considers
that the Heineken document cited to confirm the Danone
demand (recital 55) is of doubtful value as evidence,
because the author and the context of the document are
unclear.

(165) That no threat was made is in Danone’s view also shown
by the fact that Kronenbourg was in no position to drive
Interbrew off the market. In addition, Interbrew’s special-
ity beers Leffe and Hoegaarden were very important in
France. In 1994 Danone brought pressure to bear on
Alken-Maes to adopt an aggressive marketing policy in
Belgium (recital 58), which according to Danone shows
that it was acting competitively. Danone points out that
it was in Interbrew’s interest to preserve its dominant
position on the Belgian market (recital 167 below).

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(166) Danone submits that at the meeting on 11 May 1994 a
Danone representative told Interbrew to put an end to its
abuse of its dominant position in Belgium (recital 167
below), as otherwise Danone would take a tougher atti-
tude to Interbrew in France. The reference was to parallel
imports from France into Belgium and strict application
of the Frenchdistribution contracts; according toDanone,
Interbrew’s speciality beers were at that time tolerated
in drinks outlets that had an exclusive contract with
Kronenbourg. Danone says that the figure of 500 000 hl
was mentioned by Alken-Maes at a meeting with
Interbrew which took place in connection with the
aggressive policy adopted by Alken-Maes. According to
Danone, the reference was to the extra volume Alken-
Maes needed in order to become profitable. There was no
question of a demand made on Interbrew to transfer this
volume to Alken-Maes. At the meeting with Danone on
11 May 1994 it was Interbrew that wanted to discuss the
strengthening of its position in France, and thus Interbrew
that sought to link the Belgian and French markets.
Interbrew wanted to reinforce its position in France by
taking over Danone’s beer division, or sections of it, and
by improving the distribution of its speciality beers. At
the meeting on 11 May 1994 Danone’s intention was
merely to introduce the new general manager of its beer
division.

(167) F a i l u r e

t o

I n t e r b r e w o f
t h e B e l g i a n m a r k e t

a p p r e c i a t e

b y
t h e
i t s d o m i n a n t p o s i t i o n o n

a b u s e

In the second place, Danone argues that account has to be
taken of Interbrew’s dominant position on the Belgian
market. Not only does Interbrew have a 56 % share of the
Belgian market, it also owns the best known beer brands;
in six of the eight beer segments, the best-selling beer is an
Interbrew brand. Since 1990 Interbrew has strengthened
its position in the on-trade by taking over beer whole-
salers, with the consequence that many other brewers are
now dependent on Interbrew for the distribution of their
products on this market. And since the beginning of the
1990s Interbrew has also expanded internationally, tothe
point where it is now the biggest brewer in Europe and
the second biggest in the world. According to Danone,
this international expansion was financed by Interbrew’s
strong position on the Belgian market. Danone submits
that it was important to Interbrew that that position be
preserved; following the aggressive price policy pursued
by Alken-Maes from 1992 onward, Interbrew conse-
quently took the initiative for talks with Alken-Maes.

(168) By virtue of its dominant position, Interbrew was able to
decide what new pricing structure should be adopted by

the industryas a whole. According to Danone, the pricing
structure desired by Alken-Maes was rejected by
Interbrew, and Alken-Maes had no alternative but to base
itself on Interbrew’s system. Interbrew then unilaterally
decided to introduce its new pricing system on 1 January
1997, and by doing so imposed its chosen structure on
Alken-Maes.

(169) Danone argues that during the relevant period Interbrew
abused its dominant position. Danone submits that the
Commission has acknowledged that Interbrew was guilty
of such conduct, by initiating an investigation into the
matter, but takes no account of it in the statement of
objections. Danone considers that this is unfair, because
the abuse helps to throw light on the relationships
between Interbrew and its competitors, including Alken-
Maes, in the relevant period. The Commission is therefore
wrong to speak of pressure brought to bear on Interbrew
by Alken-Maes and Danone with a view to concerted
conduct on the Belgian market.

(170) According to Danone, Interbrew abused its position by
offering beer at loss-making prices in an attempt toprevail
upon cafés to break their exclusive contracts with Alken-
Maes. At the meeting on 24 November 1994 (recital 68)
Alken-Maes asked Interbrew to stop the abusive conduct,
and in that context Interbrew and Alken-Maes agreed to
respect one another’s tied outlets. Alken-Maes repeated
its request to Interbrew to put an end to the abuse in a
letter dated 30 January 1995 (recital 72).

(171) P r i c e c o n t r o l i n B e l g i u m

In the third place, Danone argues that account has to be
taken of the price control system which required the
undertakings concerned to apply for authorisation for
any price increase. According to Danone, this in practice
meant that brewers were required to consult each other
regarding the prices of certain beers, and to document
their cost structures in detail. The brewers were conse-
quently aware of each others’ cost structures and pricing
policies, which they discussed together quite lawfully.

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(172) The meeting with the beer wholesalers’ federation on
28 January 1993 took placein this context, and the parties
were therefore not aware that they were breaking the
competition rules. At that time prices were still under the
supervision of the state, and the brewers were awaiting
the response of the Minister for Economic Affairs to an
application for a price increase which had been submitted
by the CBB. Because of the price control system, Danone
and Alken-Maes were also not aware of the unlawful
nature of the exchange of information between Interbrew
and Alken-Maes.

(173) T h e

i n i t i a t i v e w a s

a l w a y s

t a k e n

b y

I n t e r b r e w

Danone submits that Interbrew took the initiative in the
various discussions and agreements with Alken-Maes.
In November 1993 Interbrew took the initiative in
increasing prices to the off-trade and asked Danone for
Alken-Maes’s help thereafter (recital 167). The meeting of
initiative
11 May 1994 was held at
(recital 166). In 1995, too, Interbrew took the initiative
in the discussions with Alken-Maes on a new pricing
structure (225). Danone argues that Interbrew likewise
took the initiative in the exchange of information (226).

Interbrew’s

(174) N o p r i c e o r m a r k e t - s h a r i n g a g r e e m e n t s

Lastly, Danone denies that there were any price agree-
ments or market-sharing agreements between Alken-
Maes and Interbrew in the period 1993 to 1998. In
1993 and 1994 Alken-Maes and Interbrew did talk of
putting an end to the fall in prices in the off-trade, but
against a background of price control Danone argues that
this cannot be regarded as a bilateral agreement on prices.
According to Danone, the other discussions in 1993 were
not concerned with prices but with the restriction of
marketing investment in the on-trade. No price agree-
ment was concluded at the meeting on9 November 1994
(recital 66); the parties merely noted that distributors
could not sell a crate of Jupiler, Stella or Maes Pils for less
than BEF 275 without making a loss. Danone acknowl-
edges that from October 1994 onward Interbrew and
Alken-Maes consulted together regarding distribution
systems in Belgium, and more especially distribution to
the on-trade. Danone also acknowledges that in 1994
there was talk of a non-aggression pact in the on-trade,

and that in the same year Interbrew and Alken-Maes were
in contact regarding a limitation of investment in the on-
trade and in outside advertising. According to Danone,
discussion of the pricing structure for the on-trade began
at the same time. But none of these talks had either the
object or the effect of fixing the level of prices. In 1995,
according to Danone, only the new pricing structure
was discussed, and not prices or market sharing. The
discussion of the pricing structure ended in July 1996,
after Interbrew unilaterally decided to introduce its new
structure on 1 January 1997. Danone submits that the
Commission’s evidence for the period from July 1996
does not show that there was any continuation of the
practices at issue (recitals 91 to 105).

5.1.2. Meetings within the CBB

(175) According to Danone, the policy decisions taken in the
CBB were guided by Interbrew. The subjects discussed in
the CBB were Interbrew’s main concerns of the moment:
parallel
imports, a new pricing structure, and the
reduction of investment in the on-trade. Alken-Maes was
also interested in the last of these issues. Danone argues
that Interbrew employees held important positions onthe
CBB working parties at that time, and that the chairman
of the CBB was the chairman of Interbrew’s board of
directors.

5.1.3. The private-label agreements

(176) Danone emphasises that when Fedis demanded that the
brewers pay a sorting charge per crate for branded beer
(recital 81), the parties decided to exchange their volume
data so as to be able to respond. Fedis did not ask that this
sorting charge should be payable on private-label beers,
arguing that in view of the small volume of private-label
beer there was no danger of ‘free riding’. In the parties’
view, the volume was greater than Fedis maintained and,
as there were no reliable statistics, they decided to
exchange their own volume and price figures. The
exchange of information on prices may have had the
effect that prices did not fall further.

( 225) Danone refers here in particular to the memo from Interbrew’s
general manager for Belgium dated 12.7.1995 (recital 78).
( 226) Here Danone cites particular statements made by Interbrew

employees (recital 113).

(177) According to Danone,

there was no formal non-
aggression pact. Even if there was an implicit non-
aggression pact, Danone argues that it had no effect. In

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addition, the private-label market was not mapped out in
its entirety, as the foreign brewers refused to take part.

(184) Fourth, account has to be taken of the price control that
existed in Belgium until 1 May 1993. In this connection
Danone cites the Commission Decision of 9 December
1998 in the Greek ferries case.

(178) Here too, Danone points to the important role played by
Interbrew in the discussions. Interbrew was prepared to
pay a charge of BEF [...], for example, which put the other
brewers in a financially untenable position.

5.1.4.

Penalties

(179) On the question of penalties, Danone argues that at the
time of the infringement it formed a single economic unit
with Alken-Maes. Danone does not deny that it took part
in certain meetings concerning the Belgian market, and
that as Alken-Maes’s parent company it was aware of
certain acts of which Alken-Maes now stands accused.
Danone concludes that in accordance with the practice
developed by the Commission in its decisions and with
the case law of the Court of Justice, the Commission can
impose only one fine, either on Alken-Maes or on Alken-
Maes and Danone jointly.

(185) Fifth, Danone draws attention to the background of crisis
against which the disputed practices developed. There
was falling demand, overcapacity and pressure from
retailers. At no time during the period covered by the
statement of objections did Alken-Maes show a profit, so
that it had secured no advantage from the discussions
with Interbrew, says Danone.

(186) Last, Danone takes the view that account should be taken
of the fact that Interbrew had a dominant position on
the market, and that Alken-Maes tried to prevail upon
Interbrew to stop its abuse of that dominant position.
Alken-Maes depended on Interbrew to distribute its beer;
in this financially weak and dependent situation, Alken-
Maes consulted with Interbrew in order to prevent
Interbrew from destroying it.

5.2.

Interbrew

(180) Danone refers to the practice of the Commission in its
decisions and to the case law of the Court of Justice, and
draws attention to the following mitigating circum-
stances.

(187) Interbrew’s response tothe statement of objections relates
mainly to the potential imposition of penalties. Interbrew
draws attention to the following mitigating circum-
stances.

(181) First, Alken-Maes, with Danone’s approval, cooperated in
the investigation, admitted the facts, and immediately put
an end to the exchange of information with Interbrew.

(182) Second, the discussions had no effect on market shares,
consumer prices or the way in which beer supply con-
tracts were concluded with new drinks outlets, and it has
not been shown that there was any allocationof particular
customers. The discussions on pricing structures and pro-
motion policy were put into practice only to a very limited
extent. Furthermore, the private-label meetings produced
no results. According to Danone, it also appears from
sales figures and market research for the period 1993 to
1998 that the talks between Interbrew and Alken-Maes
had no effect on their market shares or prices.

(188) Interbrew submits that it is clear from the evidence that it
did not initially intend to join a cartel. But under pressure
from Danone, which threatened to destroy it in France if
it did not work together with Alken-Maes, Interbrew
found itself obliged to cooperate with Alken-Maes. At the
time, Interbrew argues, it had a share of [...] of the French
market, which was dominated by Danone with [...] and
Heineken with [...]. According to Interbrew, the initiative
came in the first place from Danone, which exploited
Interbrew’s weak position on the French market. There
were repeated talks at that time between Interbrew and
Danone regarding the possibility of a takeover or partial
takeover of Danone’s beer business. There was a tendency
at Interbrew, therefore, to treat Alken-Maes gently, in
order to create goodwill with Danone.

(183) Third, the effect of the talks was felt in only a very limited
geographic area, namelyBelgium. There was no exclusion
of foreign competition.

(189) Interbrew submits that the agreements had only a limited
influence on the Belgian market, despite the fact that the
talks between Danone, Alken-Maes and Interbrew took
place at a high level. The companies involved applied the
agreements only in part, or not at all, and the talks in the

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CBB framework produced little by way of results. The
private-label agreements were confined to an exchange of
information between the parties concerned, and did not
lead to any actual implementation of what had been
discussed.

5.3. Haacht

(190) Interbrew does not contest the duration of the infringe-
ments, which accordingto the Commission was five years
and one day for the bilateral cartel and nine months for
the private-label cartel.

(191) Interbrew also invokes the Commission notice on the
non-imposition or reduction of fines in cartel cases (227),
on the grounds that it qualifies for a substantial reduction
in the fine of the kind provided for in section C of the
notice, or in any event for a significant reduction of the
kind provided for in section D. Interbrew considers that it
qualifies for such a reduction on the following grounds.

(192) First, Interbrew does not substantially contest the facts on

which the Commission bases its allegations.

(193) Second, since November 1999, when the Commission
sent a formal request forinformation, Interbrew has coop-
erated closely with the Commission in these proceedings,
in a manner which from the very beginning has gone far
beyond merely answering the request for information.
The facts and the documentation supplied by Interbrew
make up a substantial part of the statement of objections.
Furthermore, in December 1999 Interbrew undertook an
internal investigation, and informed the Commission of
new evidence of restrictive practices. Interbrew disclosed
the existence of the private-label cartel at a time when the
Commission had no information in this regard.

(194) Third, Interbrew was initially reluctant to enter into any
agreement with Alken-Maes on the Belgian market, but
after Danone threatened to take action against it on the
French market Interbrew found itself obliged to work
together with Danone and Alken-Maes.

(195) Lastly, and contrary to what is indicated in the statement
of objections, Interbrew has put an end to all infringe-
ments of the competition rules, and has taken measures
to prevent any such infringements in future.

( 227) See footnote 23.

(196) Haacht does not contest the facts regarding the private-
label cartel. Haacht emphasises, however, that only the
first two meetings were concerned exclusively with the
Belgian market. At the third meeting the Belgian brewers
explained the system they had set up for private-label beer
to the two Dutch brewers present, and the information
exchanged at the last meeting concerned the Dutch mar-
ket only. Haacht does acknowledge that at all four meet-
ings there was an exchange of views whichalso concerned
prices in Belgium. Haacht also accepts the Commission’s
view that the exchange of information and discussion at
the meetings has to be regarded as a form of price agree-
ment and customer sharing.

(197) Haacht points out, however, that in the private-label seg-
ment the multiple retailers have been exerting downward
pressure on prices for a long time, and that between
1990 and 2000 the prices of private-label beer fell con-
siderably, while the prices of Haacht’s branded beers rose
markedly over the same period. Haacht estimates that in
1999 total private-label business in Belgium amounted to
[...] hl. Haacht supplied about [...] % of this. [...].

(198) In setting the fine, the Commission must,in Haacht’s view,
take account of the following mitigating circumstances.
First, the agreements were never applied, at least by
Haacht. Second, the discussions were organised at the
initiative of Interbrew and Alken-Maes, with Haacht play-
ing only a follow-my-leader role. Third, Haacht was the
only firm with very little international business, and
consequently had less experience of the finer points of
European competition law. It was not part of an inter-
national group with wide experience of European law and
specialised departments to handle these questions. Lastly,
Haacht points out that it did in fact cooperate with the
Commission by spontaneously supplying all the infor-
mation it was asked for, thus making it unnecessary to
conduct an inspection on its premises.

(199) On the final amount of any fine, Haacht argues that the
private-label segment accounts for no more than [...] % of
its total turnover. As the profits it makes are not used to
finance other activities, Haacht takes the view that there is
no reason to calculate a fine on the basis of its total
turnover.

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(200) Haacht also believes it qualifies for a significant reduction
in any fine of the kind provided for in section D of the
Commission notice on the non-imposition or reduction
of fines in cartel cases (228), on the grounds that in its
letter of 5 April 2000, before it received the statement of
objections, it expressly confirmed that a price agreement
had been concluded at the meetings, and that it does not
contest the facts on which the Commission bases its
allegations.

5.4. Martens

(201) In itsreply to the statement of objections Martens, discuss-
es the facts and their assessment and also considers the
question of penalties.

5.4.1.

Facts and assessment

(202) Martens states that because of its interest in private-label
beer, and given the tried and tested culture of consultation
in the CBB, which operated in respect of private-label
beer as it did elsewhere, Martens accepted Interbrew’s
invitation to attend the meetings. Martens argues that it
has not been shown that Martens expected anything other
than to be informed of developments on the market, and
it must therefore be presumed that it had no restrictive
purpose in mind.

(203) According to Martens, no price agreements or market
sharing agreements were concluded at the meetings. Mar-
tens cites the statements of employees of Alken-Maes,
Haacht and Interbrew in the Commission’s possession.
It submits that the only unambiguous evidence of the
existence of price agreements is Interbrew’s statement of
28 February 2000. But Martens throws doubt on the
reliability of that statement, in viewof Interbrew’s involve-
ment in the Interbrew/Alken-Maes cartel, and the Com-
mission’s continuing investigation into a possible
infringement by Interbrew of Article 82 of the EC Treaty.
Martens argues, furthermore, that the statement shows
only that Interbrew was a party to such agreements, not
that Martens was.

(204) Martens acknowledges that because of its interest in the
southern Netherlands region it had an interest in seeing
the attendance at the meetings broadened to include
Dutch brewers.

(205) Martens submits that from the statements made by the
participants at the meetings it is clear that no agreements
within the meaning of Article 81 of the EC Treaty were

( 228) See footnote 23.

concluded. Nor was there any concerted practice, since
the criteria for the existenceof a concerted practice formu-
lated by the Court of Justice in the Hüls case are not all
met (229). There was no consultation between the firms
with subsequent conduct onthe market and a relationship
of cause and effect between the two. The meetings had no
restrictive purpose.

(206) Martens believes that the meetings did not lead to any
change in the conduct of the firms concerned on the
market, since after the meetings between the four brewers
prices continued to fall, and after July 1998 Martens
continued to accept invitations to tender from potential
customers for private-labels. That Interbrew acknowl-
edges refraining from making a bid for an Aldi contract is
in Martens’s view irrelevant, because it is not known
whether Interbrew has ever made any bid to Aldi, and
given the lasting relations there were between Aldi and
Martens it is unlikely that Interbrew was previously inter-
ested in Aldi.

(207) Martens also submits that according to the judgment of
the Court of Justice in the John Deere case the exchange
of information is not in itself contrary to Article 81 of the
EC Treaty (230).

(208) Martens refers to the Commission Decision in the case
of the Zinc Producer Group (231), and argues that the
Commission has wrongly failed to show that there was
parallel pricing behaviour in the present case.

(209) Martens contends that given its small share of the relevant
market there can be no appreciable effect oncompetition.
Martens here refers to the Commission notice on agree-
ments of minor importance which do not fall within the
meaning of Article 81(1) of the EC Treaty (232). As there is
no agreement, Martens argues that the market shares of
the participating undertakings cannot be aggregated.

(229) Case C-199/92 P Hüls v Commission (1999) ECR I-4287.
(230) Case C-7/95 P John Deere v Commission (1998) ECR I-3111.
(231) Decision 84/405/EEC (IV/30.350), OJ L 220, 17.8.1984, p. 27.
(232) OJ C 372, 9.12.1997, p. 13.

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5.4.2.

Penalties

(210) Martens asks the Commission not to impose a fine, in
view of the absence of intention or negligence. Martens
submits that it did not intentionally infringe the compe-
tition rules, because it did not know that the object of the
talks might be to restrict competition. Martens further
contends that there was a forgivable error or good faith
on itspart, as the talksat issuetook place in the framework
of talks within the CBB.

(211) In the alternative, Martens takes the view that in line
with the Commission’s Decision in the Fenex case (233) it
qualifies for a purely symbolic fine, because its attendance
at the meetings was characterised by inexperience. Mar-
tens did not intend to infringe the competition rules, and
was entitled to believe that the meetings formed part of
consultations in the framework of the CBB.

(212) In the further alternative, Martens submits that it qualifies
for a reduced fine, on the following grounds. No effective
price agreements were concluded, and the meetings had
no restrictive object. In addition, Martens’s economic
capacity to bring about any appreciable damage to com-
petition is limited. Martens lacked legal and economic
knowledge, being a small player that did not belong to a
large economic unit. Martens further argues that account
ought to be taken of the specific weight and real influence
on competition of its offending conduct.

(213) Martens draws attention to the following mitigating cir-
cumstances. It submits that it did not play an active role,
but took part in the meetings under the leadership of
Interbrew. The infringement did not have any distorting
effect on competition, or at most only insignificant
effects, and the meetings did not result in any change in
market behaviour. There was no damage to consumers,
because prices continued to fall after the meetings. Mar-
tens emphasises that it secured no advantage as a result of
the meetings; it says this is an important consideration for
the calculation of the fine, since the Commission has
stated, in its21st Competition Report, that when it assess-
es fines it may take as its starting pointthe financial benefit
derived. Martens also draws attention to its cooperation
during the administrative proceedings: not only did it

reply to the Commission’s request for information, but
after receiving the statement of objections it supplied
further documentation. It also cooperated in a manner
that speeded up the proceedings. Martens further submits
that a fine might exceed its financial capacity. Lastly,
Martens observes that the infringement was short-lived,
and that it had come to an end before the Commission
undertook its investigation.

(214) Martens considers that in any event it qualifies for a
reduction in the fine of the kind provided for in section D
of the notice on the non-imposition of fines in cartel
cases (234), as it cooperated with the Commission investi-
gation at all times and had ended its participation in the
infringement at the time of the Commission investigation.
In addition, it played no active part in the cartel.

6. LEGAL ASSESSMENT

6.1. Article 81(1) of the EC Treaty

(215) Under Article 81(1) of the EC Treaty, all agreements
between undertakings, decisions byassociations of under-
takings and concerted practices which may affect trade
between Member States and which have as their object or
effect the prevention, restriction or distortion of compe-
tition within the common market are prohibited as
incompatible with the common market, and in particular
those which directly or indirectly fix purchase or selling
prices or any other trading conditions, limit or control
production, markets, technical development, or invest-
ment, or share markets or sources of supply.

6.2. Agreements and concerted practices

(216) The prohibition in Article 81(1) of the EC Treaty concerns
agreements between undertakings, decisions by associ-
ations of undertakings and concerted practices.

( 233) Decision 96/438/EC (IV/34.983), OJ L 181, 20.7.1997, p. 28.

(234) See footnote 23.

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(217) According to established case law, for there to be an
agreement within the meaning of Article 81(1) of the
is sufficient for the undertakings to have
Treaty it
expressed their joint intention to behave on the market in
a certain way (235).

but have adopted or adhered to collusive devices which
facilitate the coordination of their commercial behav-
iour (238).

(218) A written document is not required. There are no require-
ments as to form and contractual penalties and enforce-
ment measures are even less essential. The existence of the
agreement may be explicit or implied from the behaviour
of the parties.

(219) Article 81 EC draws a distinction between ‘concerted
practices’ and ‘agreements between undertakings’ or
‘decisions by associations of undertakings’; the object is
to bring within the prohibition of that article a form
of coordination between undertakings which, without
having reached the stage where an agreement properly
so-called has been concluded, knowingly substitutesprac-
tical cooperation between them for the risks of compe-
tition (236).

(220) The criteria of coordination and cooperation imply at the
very least the working out of an actual plan and must be
understood in the light of the concept inherent in the
provisions of the Treaty relating to competition that each
economic operator must determine independently the
policy which he intends to adopt on the common market.
Although it is correct to say that that requirement of
independence does not deprive economic operators of the
right to adapt intelligently to the existing and anticipated
conduct of their competitors, it does however strictly
preclude any direct or indirect contact between such
operators, the object or effect whereof is either to influ-
ence the conduct on the market of an actual or potential
competitor or to disclose to such a competitor the course
of conduct which they themselves have decided to adopt
or contemplate adopting on the market (237).

(221) Thus, behaviour can be regarded as a ‘concerted practice’
where the parties have not reached agreement in advance
on a common plan defining their action on the market

(222) Although it is clear from the actual terms of Article 81(1)
of the EC Treaty that the concept of a concerted practice
implies, besides undertakings’ consulting with each other,
subsequent conduct on the market, and a relationship of
cause and effect between the two, the presumption must
be, subject to proof to the contrary which the economic
operators concerned must adduce, that the undertakings
taking part in the consultation 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 is all the more true
where the undertakings consult together on a regular
basis over a long period. A concerted practice is caught by
Article 81(1) even in the absence of anti-competitive
effects on the market (239).

(223) It is not necessary, particularly in the context of a complex
infringement over a long period, for the Commission to
classify the infringement as consisting exclusively of one
or the other form of illegal behaviour. The concepts of
‘agreement’ and ‘concerted practice’ are variable and may
overlap. Realistically, it may even be impossible to make
such a distinction, since an infringement may simul-
taneously have the characteristics of both forms of pro-
hibited behaviour, whereas, taken separately, some of its
elements may correctly be regardedas one rather than the
other form. It would also be artificial from an analytical
point of view to split what is clearly a continuous, collec-
tive enterprise with a single objective into several forms
of infringement. A cartel may for instance constitute an
agreement and a concerted practice at the same time (240).

(224) In the PVC II case the Court of First Instance confirmed
that ‘the Commission cannot be expected to classify the
infringement precisely, for each undertaking and for any
given moment, as in any event both those forms of
infringement are covered by Article [81] of
the
Treaty’ (241).

( 235) See, inter alia, the judgment of the Court of First Instance of the
European Communities in Joined Cases T-305/94 etc. Limburgse
Vinyl Maatschappij v Commission (PVC II) (1999) ECR II-931,
paragraph 715.

( 236) Judgment of the Court of Justice in Case 48/69 Imperial Chemical

Industries v Commission (1972) ECR 619, paragraph 64.

( 237) Judgment of the Court of Justice in Joined Cases 40-48/73 etc.
Suiker Unie v Commission (1975) ECR 1663; judgment of the
Court of First Instance in Joined Cases T-202/98, 204/98 and
207/98 Tate & Lyle v Commission, not yet reported.

(238) See also the judgment of the Court of First Instance in Case
T-7/89 Hercules v Commission (1991) ECR II-1711, para-
graph 255.

(239) Judgment in Hüls, paragraphs 161-163, see footnote 229.
(240) Judgment in Hercules, paragraph 264; see footnote 238.
(241) Judgment in Limburgse Vinyl Maatschappij, paragraph 696; see

footnote 235.

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(225) The Court of Justice confirmed in the Anic case that it
follows from the specific wording of Article 81(1) of the
EC Treaty that an infringement may result not only from
an isolated act but also from a series of acts or from
continuous conduct (242).

hereinafter referred to as ‘the Interbrew/Alken-Maes car-
tel’, and the second is the concerted practices between
Interbrew, Alken-Maes, Haacht and Martens relating to
private-label beer, hereinafter referred to as ‘the private-
label cartel’.

(226) A complex cartel can thus be regarded as a single continu-
ous infringement for the period of its existence. The
agreement may change from time to time, or its mechan-
isms may be adapted or strengthened to take account of
new developments. The validity of this classification is
not vitiated by the possibility that one or more elements
of a series of acts or of continuous conduct could in
themselves constitute a breach of Article 81(1) of the EC
Treaty.

(227) Although a cartel is a form of collective behaviour, each
party to the agreement may playits own specific role. One
or more of them may play a leading role. Internal conflicts
and rivalries or even deceitmay occur, but will not prevent
the agreement from forming an agreement/concerted
practice within the meaning of Article 81(1), if the parties
pursue a collective and continuous goal.

(228) An undertaking that has taken part in an infringement of
Article 81(1) through conduct of its own, which formed
an agreement or concerted practice having an anti-com-
petitive object for the purposes of that Article and which
is intended to help bring about the infringement as a
whole, is also responsible, throughout the entire period
of its participation in that infringement, for conduct put
into effect by other undertakings in the context of the
same infringement. That is the case where it is established
that the undertaking in question was aware of the offend-
ing conduct of the other participants or that it could
reasonably have foreseen it and that it was prepared to
take the risk (243).

6.3. Nature of the infringements
in the present case

(229) The case in point concerns two clearly distinct infringe-
ments. The first is the complex of concerted practices
and/or agreements between Interbrew and Alken-Maes/
Danone, within the framework of the CBB or otherwise,

( 242) Judgment in Case C-49/92 P Commission v Anic Partecipazioni

(1999) ECR I-4125, paragraph 81.

( 243) Judgment in Anic, paragraph 83, see footnote 242.

6.3.1. The Interbrew/Alken-Maes cartel

(230) The Interbrew/Alken-Maes cartel contains a broad range
of anti-competitive agreementsand arrangements.

(231) Bilateral talks took place between Interbrew and Alken-
Maes from at least November 1992 (recital 43). At about
the same time (October 1992) the two companies also
perfected the exchange of information by communicating
to each other the sales volumes for all beer sectors
(recitals 116 and 125). Off-trade prices were harmonised
from at least January 1993 (recitals 44 and 49). In March
1993 Interbrew clearly still had some reservations about
extending cooperation (the ‘Université de Lille’ project),
on account, inter alia, of the risk of anti-trust proceedings
(recital 45). In the second half of 1993 Interbrew con-
tinued to hold discussions about raising off-trade prices
with a large retailer and wanted to involve Alken-Maes in
them as well (recitals 49 and 50). Belgian beer prices were
no longer regulated at the time (recital 10).

(232) Clearly under pressure from Danone, Interbrew changed
its position as regards extending cooperation in 1994. At
a meetingin May 1994 Danone put pressure onInterbrew
by setting relations between the two undertakings on the
Belgian market in the context of their relations on the
French market. In contrast to the Belgian market, where
Interbrew had a large and Alken-Maes a small market
share, Interbrew in 1994, with approximately [...] %, was
the smallest player, relatively speaking, on the French
market, where Danone and Heineken had market shares
of [...] % and [...] % respectively. Danone’s message was
that if Interbrew did not help Alken-Maes on the Belgian
market — a transfer of 500 000 hl, or 4,7 % of total beer

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consumption in Belgium at the time, was mentioned (244)
— then Danone (together with Heineken) could make life
difficult for Interbrew on the French market (recitals 53
to 54).

en-Maes was ultimately forced to abandon its aggressive
pricing policy: it was only working to its own disadvan-
tage, since Interbrew was copying the policy. Danone’s
argument that its objective before the meeting on 11 May
1994 was simply to introduce the new general manager
of its beer division cannot be accepted, since that person
had already met Interbrew’s CEO at the beginning of 1994
(recital 52).

statements by

(233) Danone’s position that there was no question of a require-
ment totransfer 500 000 hl under the threat of destroying
Interbrew in France can be rejected for the following
reasons. It is clear that there was such a requirement, not
merely from individual
Interbrew
employees (recital 54), but also from a document of
Heineken’s (recital 55). The Commission does not share
Danone’s view that the evidential value of the Heineken
document is doubtful because a name and a date are
missing. In the formal request for information dated
14 April 2000 the Commission asked about a document
that was found during the inspection at Heineken in
March 2000 in the middle drawer of the desk of a named
member of the board of directors, which document was
given the code A5.2 by the Commission. The copy sent
by Heineken is the document requested, since it bears the
same code plus a description of the place where it was
found (245). The origin of the document is thus estab-
lished. That the document contains confidential data
which is not accessible to the parties in the case does not
diminish its evidential value.

(234) That Interbrew took Danone’s threat seriously is shown
by its changed attitude towards extending cooperation
with Alken-Maes after May 1994 (recital 56). Danone’s
explanations of the change in Interbrew’s attitude are not
convincing. It should be noted that up to 1994 Interbrew
and Alken-Maes had struck agreements only over prices
in the off-trade and that Interbrew was hesitating about
extending cooperation with Alken-Maes, partly because
it thought that as market leader it did not need to do so
(recitals 45 and 50). Danone’s argument that Interbrew
attached importance to its position on the Belgian market
and therefore, after the introduction of Alken-Maes’s
aggressive pricing policy, took the initiative to conclude a
non-aggression pact, isnot sufficient toprompt a different
conclusion. The file shows that Interbrew had made it
clear to Alken-Maes that it would react to the latter’s
pricing measures. Danone itself acknowledged that Alk-

(235) A more detailed investigation of the French beer markets
would not have alteredthe above conclusion. The opinion
of the former general manager of Danone’s beer div-
ision (246) that Danone’s share of the French market was
only 16 % is not correct. A Danone document from 1995
shows that Kronenbourg’s market share in France in 1994
was [...] % ([...] % for the off-trade and [...] % for on-
trade) (247). Furthermore, not only is it sufficiently proven
that Danone required Interbrew to transfer a number
of hectolitres to Alken-Maes or risk being destroyed in
France. There is also the fact that Interbrew took the threat
seriously: although no effect was given to the requirement
to transfer 500 000 hl to Alken-Maes, Interbrew was
quite ready from that moment on to extend the agree-
ments with Alken-Maes and no longer to limit them to
the exchange of information and agreements on off-trade
prices. An investigation of the French market, therefore,
would not have altered the conclusion that Danone had
successfully put Interbrew under pressure. Even if, after
such an investigation, it were to appear that Danone could
not have carried out these threats, the conclusion that
Danone was successful in its attempt to put Interbrew
under pressure is still valid, given the documents in the
Commission’s possession in this case.

(236) Ultimately, the transfer of a large volume of beer did not
take place (recitals 57 and 58), but the parties did reach a
truce in July 1994 (recital 56), which was to develop into
a comprehensive gentleman’s agreement on 9 November
that year under the code name already used earlier by
Interbrew of ‘Université de Lille’. From that moment on
the contacts between Interbrew and Danone/Alken-Maes
were no longer limited to prices in the off-trade and the
reduction of marketing investment in the on-trade, but
were considerably extended. The agreement concluded in
November 1994 was divided into the following parts: a

( 244) See Annex I to this Decision.
( 245) Request for information dated 14 April 2000 (doc. 37614
9723) and reply from Heineken dated 11 May 2000 (doc.
37614 9947).

(246) Annex to Danone’s reply to the statement of objections.
(247) Annex L-7b to Interbrew’s letter of 28 February 2000 (doc.

37614 8996-9025).

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general non-aggression pact, agreements on prices and
promotions in the off-trade, customer sharing in the on-
trade market (originally limited to the ‘traditional’ part of
the sector (248))by perpetuatingthe thencurrent situation,
agreements on advertising and investment in the on-
trade, and agreements on a new pricing system for cus-
tomers in both the on-trade and the off-trade (recitals 58
to 68).

factory pricing (the activities of this subgroup were sus-
pended shortly after it was set up), investment in drinks
outlets, and outside advertising (set up later).

‘J=SA=A-M=275,-’

(see footnote 80)

(237) At the meeting on 9 November 1994 between Interbrew
and Alken-Maes not only was the ‘Université de Lille’
gentleman’s agreement broadly confirmed but a price
agreement for the off-trade was also discussed (recital 66).
Danone disputes that an agreement on off-trade prices
was reached at this meeting (recital174). The handwritten
notes
related,
according to Danone, to Alken-Maes’s and Interbrew’s
finding that distributors of Pils lagers (Jupiler, Stella and
Maes) could not charge consumers less than BEF 275 a
crate without making a loss. This argument of Danone’s
is not convincing, however. There is nothing in the con-
text to show that this was a comment by the brewers on
the (profitability of the) prices applied by the distributors.
On the contrary, the handwritten notes are found after
the sentence ‘Pricing in the food to be established’ (249).
Furthermore, the discussion on 9 November 1994 was a
continuation of earlier discussions in October 1994,
where the fixing of prices in the off-trade had already been
talked about (recitals 60 to 65).

(238) The gentleman’s agreement of November 1994 coincides
more or less with the submission on 22 November 1994
of a report on the Belgian beer market prepared for the
CBB by the consultancy firm Arthur D. Little (recital 135).
Interbrew and Alken-Maes agreed that the part of the
agreement concerning advertising spending in the on-
trade could be implemented within the CBB (recitals 59
and 66). This would be done by the Vision 2000 working
party and in particular by the following subgroups, which
were set up in January 1995: investment in publicity
materials, management of delivered-to-premises and ex-

( 248) I.e. not including ‘national customers’, such as catering firms.
( 249) Original English.

(239) In the years that followed (up to January 1998), the
gentleman’s agreement was implemented further. Regular
discussions took place between Interbrew and Alken-
Maes, and occasionally with Danone, in which the current
state of affairs was reviewed. In 1995 the customer shar-
ing agreement for the on-trade market was broadened to
include national customers (recital 73). At the same time,
under the chairmanship of representatives of Interbrew
and Alken-Maes, discussions took place in sub-groups of
the CBB Vision 2000 working party on how the brewers’
investments in the on-trade market could be reduced
(recitals 133 to 154).

(240) From mid-May 1995 to the end of 1996 intensive talks
were held on a new pricing system. The agenda for these
includes, in particular, pricing structure and the date for
introducing the new system (recitals 74 to 91).

(241) Ultimately, the discussions in the CBB, except those on
investments in publicity material for the on-trade (such as
glasses and beer mats; see also recital 137), turned out to
be fruitless and they were broken off in mid-May 1997
(recitals 154 and 155).

(242) In January 1998 Interbrew and Alken-Maes reviewed
their cooperation since the ‘Université de Lille’ agreement
of November 1994 (recitals 103 and 104). ‘Achievements’
included: adaptation of advertising credit vouchers (result
of the discussions in the CBB on publicity material in the
on-trade; see also recitals 147 and 241), pricing (for both
the on-trade and the off-trade), respect for each other’s
ties (in the on-trade), and the non-aggression pact. No
results were achieved concerning the regulation of invest-
ment (in the on-trade), the participation of other players
and outside advertising (in the on-trade, see also
recital 241). At the same time, the parties clearly expressed
the intention to hold discussions with each other about
the on-trade three times a year as from January 1998.
No evidence has come to light that this actually happened
(recitals 104 and 105).

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(243) During the lifetime of the cartel, therefore, there was
regular consultation and agreements were struck on the
following subjects:

(f)

the exchange of information about sales in the on-
trade and the off-trade:

(a)

a general non-aggression pact:

in July 1994 a non-aggression pact was concluded
between Interbrew and Danone concerning the
Belgian market (recitals 56, 104 and 112);

(b) prices and promotions in the off-trade:

as early as 1993 Interbrew and Alken-Maes struck
an agreement on price increases and promotions in
the off-trade; these were also part of the gentleman’s
agreement reached in 1994 (recitals 44, 46, 47, 50,
60, 64 to 66, 107, 109 to 112);

(c)

customer sharing in the on-trade (both the ‘tra-
ditional’ on-trade and national customers):

in 1994 the agreement on respecting each other’s
ties was included in the ‘Université de Lille’ agree-
ment. The agreement was also called ‘Project Green’
in 1994. Initially it was limited to the ‘traditional’
on-trade, but in 1995 it was extended to national
customers (recitals 56, 60, 68, 73 and 111);

(d)

the restriction of investment and advertising in the
on-trade:

although Interbrew and Alken-Maes only made
agreements about reducing investments and adver-
tising in the on-trade from 1994 (in the context of
the ‘Université de Lille’ agreement), Interbrew and
Danone had already talked about this in 1993. In
1994 Interbrew and Alken-Maes agreed to develop
the subject further within the CBB, and this actually
occurred until at least May 1997 (recitals 46, 47, 59,
65, 73, 107, 111 to 112 and 133 to 154);

(e)

the new pricing structure for the on-trade and the
off-trade:

the new pricing structure was also already being
discussed by Interbrew and Danone in 1993, and
from 1994 was included in the ‘Université de Lille’
agreement. From May 1995 to November 1997 the
agreement was implemented with regard to pricing
and, especially in 1996, intensive talks took place
between Interbrew and Alken-Maes (recitals 45, 47,
65, 76, 78, 84, 84 to 91 and 100);

from at least the end of 1991 to November 1999
Interbrew and Alken-Maes exchanged sales data
with each other on a monthly basis. From 1992 the
datawere expressed in volumes (previously they had
been in percentages), by type of beer, distribution
channel and form of packaging (section 4.4).

(244) All these agreements and forms of consultation are inter-
related. Originally, in 1993, agreements were made by
Interbrew and Alken-Maes with regard to prices and pro-
motions in the off-trade. At the time, Interbrew and
Danone also discussed possibly extending ‘cooperation’
in Belgium, the reduction of marketing investments and
investments in the on-trade, and the new pricing system
(recitals 45 to 47). In the ‘Université de Lille’ agreement
concluded in 1994, which came into existence under
pressure from Danone, not only were all these subjects
considered but an agreement was made to share out
customers in the on-trade. Interbrew’s and Alken-Maes’s
system of exchanging information, and the good ‘market
intelligence’ obtained as a result, was instrumental in the
implementation of these agreements (recitals 122 and
124).

(245) The above agreements and meetings took place at the
highest management level in the undertakings concerned.
At Interbrew, those chiefly involved were the CEO, the
COO Europe/Asia Pacific/Africa, the general manager for
Belgium, the off-trade manager and the on-trade market-
ing manager. At Alken-Maes, they were in particular the
general manager, the off-trade manager and the on-trade
manager, and at Danone the chairman and general man-
ager and the general manager of the beer division.

(246) The existence of agreements between Interbrew and
Alken-Maes which distorted competition was admitted
by (representatives of) Interbrew and Alken-Maes after
the Commission had started its investigation (recitals 106
to 112 and 125).

(247) The justification given by Danone for the price agree-
ments in 1993 and the exchange of information is that
until 1 May 1993 prices in Belgium were controlled
(recitals 171 to172). However, Danone’s arguments must

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be rejected, for the following reasons. Belgian price
control for brewers was in force only until 1 May 1993.
The rules, moreover, were such that undertakings
could choose to submit requests for price increases
individually or collectively. The brewers were thus free
If they decided to
to submit individual applications.
make a collective application, however,
it had to be
submitted through their trade association. This means
that in no way was it the intention that individual
undertakings should jointly, i.e. without the agreement
of a trade association, submit or, where appropriate,
discuss a request for a price increase. The Commission
would point out that the members of the CBB were
free to determine how far and at what moment the
authorised price increase should be applied. Even if
the Commission were to accept — which is not the
case — that discussions about prices between brewers
were due to price control, it is significant that the CBB
presented a collective application for a price increase
for the last time on 23 December 1992. The agreement
of 28 January 1993 (recital 44) is from after that date
and thus cannot have been an agreement between
brewers within the framework of the CBB regarding a
collective application for a price increase. This is
already clear, too, from Danone’s reply to the statement
of objections, in which Danone talks of the meeting
with the beer wholesalers. Also significant is that the
competent minister authorised the price increase on
6 February 1993 subject to the express condition that
there should be no further price adjustments in 1993
(recital 10). Consequently,
in no circumstances can
price control be a justification for restrictions of price
competition (250).

(249) As a justification for the market-sharing agreements,
Danone contends that Interbrew abused its dominant
position to the detriment of Alken-Maes by trying to
prevail upon public houses which had an exclusive
contract with Alken-Maes to breach that contract, inter
alia, by selling beer at loss-making prices. Alken-Maes
tried to persuade Interbrew to stop this abuse, which
resulted in the agreement to respect each other’s tied
premises. The Commission takes the view that this
cannot be regarded as a justification for the market-
sharing agreements. In no sense is it the intention that
undertakings should mutually conclude non-aggression
pacts, thereby infringing Article 81 EC, in order to put
an end to a possible breach of Article 82. And the
fact that the Commission may in the meantime have
started an investigation into a possible infringement of
Article 82 by Interbrew does not necessarily mean
that the abovementioned conduct of Interbrew should
be regarded as an infringement of that Article.

6.3.2. The private-label cartel

(250) From the autumn/winter of 1997 to the summer of
1998 there were four meetings about private-label
beer (recital 156).

(248) Nor can price control be a justification for the exchange
of information. The Commission acknowledges that
detailed information had to be submitted together with
a request for a price increase. However, the brewers
were supposed to supply that information to the CBB,
which submitted the collective request, and not to each
other. Furthermore, such information was supplied to
the CBB only when a request for a price increase was
submitted, and not every month, as in the case of
Interbrew and Alken-Maes. Moreover, it was admitted
by Danone that information was not exchanged in the
context of price control, but started when Alken-Maes,
as a result of a strike at Interbrew in 1989, delivered
Interbrew beer to on-trade outlets tied to Interbrew. In
this respect the Commission has also taken account of
the fact that price control
for the beer sector was
abolished as of 1 May 1993.

( 250) See also Commission Decision of 10 July 1986 (IV/31.371 —

Roofing felt), OJ L 232, 19.8.1986, p. 15.

(251) At

these meetings

the Belgian brewers

involved
discussed the private-label segment of the Belgian beer
market, and in particular customers and prices. With
regard to private-label beer in Belgium,
they also
exchanged information at any rate on customers and
(customer) volumes, and perhaps also on prices
(recitals 157, 159 and 160). The discussions and
exchange of information were aimed at sharing out
customers in Belgium and agreeing or concerting
prices (recitals 157 and 159 to 161).

(252) Martens denies that this was the case (recital 203). From
the statements of (former) Interbrew employees it is
clear, however, that customer-sharing and the price level
were topics at the private-label meetings (at each of
which Martens was present). Haacht’s answer to a
request for information from the Commission confirms
that the price level was the subject of the four meetings.
That this conclusion is not based on a faulty reading of
these statements is clear, moreover, from the written
replies of Haacht and Interbrew to the statement of
objections, in which they acknowledge that prices and
customer-sharing were discussed at the meetings. It is

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also relevant in this respect that Danone, in its reply to
the statement of objections, which was also submitted
on behalf of Alken-Maes, did not deny that prices and
customer-sharing were discussed at the meetings.

strate that it had in fact indicated to its competitors that
it was taking part in a different spirit (251). Martens has
it did not
not been able to do this. Furthermore,
terminate its participation in the private-label cartel after
the first meeting, but was also present at the following
meetings and even tried, as a result of its activities on
the Dutch market,
to invite Dutch brewers to the
meetings as well.

(253) The Commission acknowledges that the evidence of
concerted action between the four brewers is based only
on statements from the undertakings concerned, but
does not agree with Martens that this is not enough to
conclude that there was an infringement of Article 81 of
that Interbrew’s
the EC Treaty. Martens’s argument
statements are dubious because of
its involvement
in other competition proceedings in the Commission
(recital 203) cannot be accepted. Haacht’s reply is
identical, and neither Danone nor Alken-Maes dispute
the Commission’s version. In addition, it must also be
emphasised that each infringement and the conse-
quences thereof for the undertaking or undertakings
concerned is assessed on its own merits.

(256) Martens denies that it altered its market behaviour as a
result of the meetings (recital 206). According to the
Court of Justice, the presumption must be that, subject
to proof to the contrary, undertakings taking part in
consultation and remaining active on the market take
account of the information exchanged with their com-
petitors for the purposes of determining their conduct
on that market (252). The evidence supplied by Martens
shows, however, only that Martens did not put into
effect the results of the meeting, namely the exchange of
information and discussions of customers aimed at not
triggering a price war on the private-label market and at
sharing out customers (253).

(254) Although it cannot be established with certainty from
the available evidence that there was an agreement
between the four brewers, it is at any rate proven that
there was a concerted practice. The meetings served to
influence the market behaviour of competitors and to
report on market behaviour to competitors (recitals 157
and 159 to 161). At
the meetings not only was
information exchanged but prices and customers were
discussed. From statements by Interbrew and Haacht, it
is clear that the aim of the meetings was, firstly, to
prevent a price war and adopt a position on prices and,
secondly, to share out customers by not making (real)
offers to the customers of other brewers. Since the aims
of the meetings were clearly anti-competitive, it is not
necessary to show that their consequences were also
harmful to competition.

(257) Martens’s citation of the notice on agreements of minor
importance which do not fall under Article 81(1) of
the Treaty establishing the European Community (254)
(recital 209) serves no purpose. According to point 6
thereof, the notice is likewise applicable to concerted
practices. Consequently, in the case of concerted prac-
tices too,
the assessment of whether the notice is
applicable must be based on the aggregate market shares
of all the undertakings concerned.

(258) Martens’s citation of the John Deere case (recital 207)
serves no purpose either. In the case at issue, in contrast
to the John Deere case, there is no isolated exchange of
the brewers also discussed prices and
information:
market shares.

(255) Since it is thus established that Martens did take part in
the meetings of a manifestly anti-competitive nature, it
must be accepted that its participation was intended to
restrict competition, unless the company can demon-

(251) Judgment in Hüls, paragraph 155; see footnote 229.
(252) Judgment in Hüls, paragraph 162; see footnote 229.
(253) Judgment in Anic, paragraph 127; see footnote 242.
(254) See footnote 232.

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(259) Martens’s argument that the Commission must demon-
strate that there was parallel pricing (recital 208) is based
on an inaccurate interpretation of the decision cited by
the undertaking. In the Zinc Producer Group case, the
Commission considered that under certain circum-
stances parallel pricing without evidence of direct con-
tact between the undertakings concerned is insufficient
evidence of a concerted practice. It cannot be inferred
from that decision, therefore, that evidence of meetings
is by itself not sufficient to support the conclusion that
there is an infringement of Article 81 of the EC Treaty.

(260) That Fedis’s request for a sorting charge was the reason
for the private-label meetings, as stressed by Danone
(recital 176), is no justification for the talks on prices
and customers and the exchange of data. As a reaction
to the Fedis request, it would have been sufficient for the
private-label brewers to provide volume data to a
neutral third party, such as the CBB, which could have
subsequently compiled the individual data into an overall
survey.

and, hence, as a market-sharing agreement, which is
expressly considered by Article 81(1) of the EC Treaty as
restrictive of competition.

(263) Market sharing and price agreements were the real goals
the private-label cartel. Since price is the chief
of
instrument of competition, here too the separate courses
of conduct adopted by the producers all had as their
ultimate goal to force up prices to their advantage, above
the level that would have been attained under free
competition.

(264) The sharing of markets and the fixing of prices restricted
competition within the meaning of Article 81(1) of the
EC Treaty.

(265) The most prominent aspects of

the (complexes of)
agreements, pacts and practices which can be classified
as restrictions of competition were:

6.4. Restriction of competition

(261) Article 81(1) of the EC Treaty specifically states that
agreements, decisions and concerted practices which
(inter alia)

— directly or indirectly fix purchase or selling prices

or any other trading conditions, or

— share markets or sources of supply,

are a restriction of competition.

(262) These were the real purposes of the horizontal agree-
ments in the Interbrew/Alken-Maes cartel. Since price is
the chief instrument of competition, the separate secret
deals made and mechanisms set up by the producers all
had as their ultimate goal to force up prices to their
advantage and above the level that would have been
attained under free competition. The agreement
to
ties and national customers
respect each other’s
(recitals 60, 68, 73 and 111) must be regarded as an
agreement to share customers on the on-trade market

The Interbrew/Alken-Maes cartel

Regular participation in meetings by, and other contacts
between, managers of the undertakings concerned in
order to agree and implement/amend the following
restrictions:

(a)

a general non-aggression pact;

(b)

direct and indirect agreement of or consultation on
prices and promotions in the off-trade;

(c)

the sharing out of customers in the on-trade
market (both the ‘traditional’ on-trade and national
customers);

(d)

the restriction of investment and marketing in the
on-trade market;

(e)

(f)

the agreement of a new pricing structure for both
the on-trade and the off-trade;

the exchange of information on sales in both the
on-trade and the off-trade;

The private-label cartel

(a)

consultation regarding
prices;

customer-sharing

and

(b)

the exchange of information about customers.

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(266) Given the clearly restrictive purpose of the abovemen-
tioned agreements and practices, it is not necessary to
investigate how far each restriction contributed to the
achievement of the intended purpose in order to decide
if there is an infringement of Article 81(1) of the EC
Treaty (255). It should be noted here that the restrictions
of competition referred to in recital 265 are only parts
of the Interbrew/Alken-Maes cartel, on the one hand,
and the private-label cartel, on the other hand, and that
the Interbrew/Alken-Maes cartel and the private-label
cartel should each be regarded as a separate infringe-
ment.

6.5. Effect on trade between Member States

(267) As the Court of Justice has consistently held, in order
that an agreement between undertakings may affect
trade between Member States it must be possible to
foresee with a sufficient degree of probability on the
basis of a set of objective factors of law or fact that it
may have an influence, direct or indirect, actual or
potential, on the pattern of trade between Member
States (256).

(268) The application of Article 81(1) of the EC Treaty to a
cartel is not confined to that proportion of the parties’
sales that actually involves the carriage of goods from
one State to another. Still less is it necessary, in order for
these provisions to apply, to show that the individual
conduct of each participant, as distinct from the cartel as
a whole, has affected trade between Member States (257).

(269) It is clear from recitals 19 and 21 that, even on the basis
of
the figures provided by Interbrew, considerable
quantities of beer are imported into and exported from
Belgium. By far the largest part of this trade is with other
Member States.

(270) Price differences between Belgium and other Member
States may cause parallel trade flows and do in fact do
so (recitals 19 and 20).

(271) The ultimate purpose of the Interbrew/Alken-Maes cartel
was to set prices at a higher level than would have

( 255) See the judgment of the Court of Justice in Case 123/83 BNIC v
Guy Clair (1985) ECR 391 and the judgment of the Court of
First Instance in Joined Cases T-68/89, T-77/89 and T-78/89
Società Italiana Vetro v Commission (1992) ECR II-1403.

( 256) Judgment of the Court of

Justice in Case 42/84 Remia v

Commission (1985) ECR 2545, paragraph 22.

( 257) Judgment of the Court of First Instance in Case T-13/89
Imperial Chemical Industries v Commission (1992) ECR II-1021,
paragraph 304.

happened in normal competition. For this reason alone
it can be assumed that this complex cartel agreement
had an influence, direct or indirect, actual or potential,
on the pattern of trade between Member States. In
addition, the following remarks should also be made
about the cartel agreement. The cartel must be seen in
the context of relations on the French market (recitals 51
to 55). The French parent company of Alken-Maes
played an active role in the cartel.

(272) Secondly, the partial implementation of the cartel within
the framework of the CBB must also be seen in the light
of the Scenario 2000 study commissioned by the CBB
and carried out by Arthur D. Little. The study was
prompted, inter alia, by the opening of Europe’s internal
borders and the consequences thereof for the Belgian
market. One of its aims was to gain an understanding of
the beer trade and the on-trade sector in Belgium, on
which brewers could base their commercial strategy
(recital 129).

(273) For the above reasons,

the outlined restrictions of
competition in the Interbrew/Alken-Maes cartel may
distort trade patterns in the brewing sector from the
course which they would otherwise have followed. The
Commission must therefore find that the restrictions of
competition may
trade between Member
States (258).

affect

(274) The purpose of the private-label cartel was to set prices
at a higher level than would have happened in normal
competition. Here again, for this reason alone it can be
assumed that the cartel had an influence, direct or
indirect, actual or potential, on the pattern of trade
between Member States. In addition, the participants in
the cartel established a link with neighbouring markets
(Netherlands, Luxembourg and Germany). At two of the
meetings Dutch producers of private-label beer were
also present (recitals 156, 157 and 159).

(275) For the above reasons,

the outlined restrictions of
competition in the private-label cartel may distort trade
patterns in the brewing sector from the course which
they would otherwise have followed. The Commission
therefore finds that the restrictions of competition may
affect trade between Member States (259).

(258) Judgment of the Court of Justice in Joined Cases 209 to 215
and 218/78 Van Landewyck v Commission (1980) ECR 3125,
paragraphs 171 to 173.

(259) Judgment

in Van Landewyck, paragraphs 171 to 173; see

footnote 258.

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6.6. Article 81(3) of the EC Treaty

(276) The agreements and practices which are the subject of
this decision were made in secrecy and were not notified
to the Commission. Consequently they cannot be
exempted from the application of Article 81(1) of the
EC Treaty. In any event, the practices of the undertakings
concerned do not
in principle satisfy the tests of
Article 81(3) of the EC Treaty, since the different parts
of the cartel and the combination of them are clearly
anti-competitive. More specifically, the Commission is
not aware of any information which may lead to the
conclusion that that the four conditions for granting an
individual exemption are met.

7. ADDRESSEES OF THIS DECISION

(277) This decision is addressed to the undertakings which are

directly involved in the infringements.

(278) For the Interbrew/Alken-Maes cartel, these are Interbrew
and Alken-Maes. Since Danone had control over Alken-
Maes during the infringement and was itself involved,
this decision is also addressed to Danone.

(279) Although part of the cartel operated within the frame-
work of the CBB, the CBB itself cannot be charged with
taking part in the infringement. Interbrew and Alken-
Maes used the CBB only as a forum for the further
elaboration and implementation of the bilateral cartel
agreements. The CBB therefore did not play a separate
role in the cartel (260).

(280) For the private-label cartel, the addressees are Interbrew
and Alken-Maes together with Haacht and Martens.
Although Danone had control at the time over Alken-
Maes, the Commission has no evidence that it too was
actually involved in the private-label cartel. Conse-
quently, Danone is not an addressee as regards the
private-label cartel.

8. DURATION OF THE INFRINGEMENT

8.1. The Interbrew/Alken-Maes cartel

(281) The Commission has evidence concerning the Interbrew/
Alken-Maes cartel from at least 28 January 1993 to

( 260) See the judgment of the Court of Justice in Joined Cases 89/85,
104/85, 116/85, 117/85, and 125-129/85 Wood pulp (1988)
ECR 5193, paragraphs 24 to 27.

28 January 1998 inclusive (recitals 44 and 103). On
28 January 1993 a report was made of a first meeting
with a clearly anti-competitive aim. On 28 January 1998
the last meeting within the framework of the cartel
took place in respect of which the Commission has
documentation. The duration of the infringement is thus
five years and one day. It is true that the exchange of
information began earlier and finished later, but these
proceedings, as formally initiated by the Commission’s
adoption of the statement of objections on 29 September
2000, relate only to the cartel as it existed in its entirety.
There is also no evidence that the proposed discussion
of the on-trade, mentioned in the notes of the marketing
manager for Belgium (recital 104, point 3), actually took
place.

(282) Danone disputes that the infringement lasted as long as
this. According to Danone, the discussions between
Alken-Maes and Interbrew started only on 12 October
1994 and had already ended in July 1996, when
Interbrew decided to introduce its new pricing structure
as from 1 January 1997. This argument, however,
ignores the evidence held by the Commission of earlier
discussions between Alken-Maes and Interbrew, starting
on 28 January 1993. As already explained above,
Danone’s justifications of these discussions are irrelevant
(recitals 247 and 248). The fact that only agreements
from 12 October 1994 onwards were reviewed at
the meeting between Alken-Maes and Interbrew on
28 January 1998 does not alter this. On that date
Interbrew and Alken-Maes discussed the agreements
existing between them. The fact that, owing to circum-
stances, the discussion was not followed up does not
mean that this was not a meeting within the framework
of the existing agreements and consultation between
Interbrew and Alken-Maes.

(283) Contrary to what Danone states, the Interbew/Alken-
Maes cartel was not ended in July 1996. Interbrew has
acknowledged that the infringement lasted until January
1998 (recital 111) and one of the Alken-Maes employees
who was involved in the pricing discussions at the
time has stated that cooperation with Interbrew ceased
in November 1997 (recital 100). The Commission also
has evidence that discussions in the context of the
cooperation between Interbrew and Alken-Maes took
place on 9 December 1996 (by telephone), 17 April
1997 and 28 January 1998 (recitals 91, 95, 96, 103 and
104). The fact that Alken-Maes also had a study carried

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out at the time on the (draft) pricing system of Alken-
Maes and Interbrew does not alter the conclusion that
the infringement continued, given the abovementioned
evidence held by the Commission.

No 17 empowers it to require the undertakings con-
cerned to bring such infringement to an end.

(284) Contrary to what Danone states, the subject of the
discussion on 17 April 1997 was the coordination of
the market behaviour of Interbrew and Alken-Maes/
Danone. In view of Interbrew’s statement on the content
it cannot be accepted
of this discussion (recital 96),
that what was discussed was a possible takeover of
Kronenbourg/Alken-Maes by Interbrew, which more-
over is not proven by Danone.

(285) At the 28 January 1998 meeting the subject discussed,
according to the notes of the Interbrew representative
present, was the relations between Interbrew and Alken-
Maes. Not only were the results of previous cooperation
reviewed, but current aspects and the method of consul-
tation were also discussed (recital 104). Danone’s state-
ment that the meeting on 28 January 1998 was between
a brewer (Alken-Maes) and its distributor for the Brussels
region (Interbrew) is not plausible. Nor does it appear so
from the evidence held by the Commission. On the
contrary, it is clear from statements by representatives
of both Interbrew and Alken-Maes that the discussion
was unproductive and that afterwards the contacts
ceased (recital 105).

8.2. The private-label cartel

(286) From the evidence available to the Commission it is
clear at any rate that the meetings took place between
9 October 1997 and 7 July 1998 (recital 156). The
duration of the infringement is therefore at least approxi-
mately nine months. This is not disputed by the
undertakings concerned.

(288) An employee of Interbrew who was involved at the time
in the Interbrew/Alken-Maes cartel stated that after the
meeting on 28 January 1998 ‘nothing more happened’
(recital 105). Nor does the Commission have any
evidence that either of the parties continued the anti-
competitive behaviour after 28 January 1998.

(289) With regard to the exchange of information between
Interbrew and Alken-Maes, it is also relevant that Alken-
Maes sent
its letter of
the Commission a copy of
5 November 1999 terminating the exchange.

(290) As far as the private-label cartel

is concerned, the
participants have stated that there were only four
meetings, the last of which took place in July 1998
(recital 156). In addition, one of the employees involved
has
stopped
(recital 157). The Commission has no evidence that the
consultation continued after the last meeting.

consultation was

stated

that

the

(291) In reply to the statement of objections, Interbrew stated
that both the Interbrew/Alken-Maes cartel and the
private-label
cartel had already been terminated.
Interbrew refers in this respect to its letter of 29 February
2000,
in which it stated that it had terminated the
infringements and taken far-reaching measures to pre-
vent a repetition of such breaches of the competition
rules. One of the measures is the introduction of a
comprehensive ‘compliance programme’ consisting, inter
alia, of a six-monthly internal and external audit. This
makes
Interbrew
employees are not allowed to make agreements on
prices, conditions of sale, market-sharing and the
exchange of information.

among other

things

clear

that

9. PENALTIES

9.1. Article 3 of Regulation No 17

(292) In view of the above, it is not necessary to require the
undertakings concerned to terminate the infringement.

9.2. Article 15(2) of Regulation No 17

(287) Where the Commission finds that there is infringement
of Article 81(1) of the EC Treaty, Article 3 of Regulation

(293) Under Article 15(2) of Regulation No 17, the Com-
mission may by decision impose on each undertaking
fines of from EUR 1 000 to EUR 1 000 000, or a sum
in excess thereof but not exceeding 10 % of the turnover

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in the preceding business year of each of the undertak-
ings participating in the infringement where, either
intentionally or negligently, they infringe Article 81(1)
of the EC Treaty.

(294) In determining the amount of a fine the Commission
must take all relevant circumstances into account and in
particular the gravity and duration of the infringement.
The method applied is that 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 (261).

9.2.1. The Interbrew/Alken-Maes cartel

9.2.1.1. O n

w h o m s h o u l d

f i n e s

b e

i m p o s e d ?

(295) The Commission considers that, with regard to the
Interbrew/Alken-Maes cartel, it is appropriate to impose
a fine on Interbrew and Danone. Danone is responsible
for both its own involvement in the infringement and
that of Alken-Maes. A parent company which is actively
involved in the participation of one of its subsidiaries in
a cartel can be held responsible for the behaviour of that
subsidiary (262). As Danone itself has stated, it formed an
economic unit with Alken-Maes at the time of the
infringement of Article 81(1). Moreover, at the time,
Danone was not only the parent company of Alken-
Maes, but was also itself directly involved in the cartel.
Danone acknowledges having taken part in meetings
concerning the Belgian market and having been aware
of certain practices. It should therefore be held respon-
sible for both its own involvement in the cartel and that
of Alken-Maes.

9.2.1.2.

I n t e n t i o n o r n e g l i g e n c e

(296) It is clear from the facts that all participants in the cartel
intended to make agreements about a general non-
aggression pact, prices and promotions in the off-trade,
sharing customers in the on-trade (both the ‘traditional’
sector and national customers), the restriction of invest-
ment and advertising in the on-trade, the new pricing

structure for the on-trade and the off-trade, and the
information about both on-trade and
exchange of
this
off-trade sales. The Commission considers that
infringement should be regarded as intentional, since
the parties could not possibly have been unaware that
the above agreements or the combination of them were
intended to restrict competition.

9.2.1.3. G r a v i t y o f t h e i n f r i n g e m e n t

(297) A horizontal agreement or consultation such as the one
in question — comprising a general non-aggression
pact, the direct and indirect agreement of or consultation
on prices and promotions in the off-trade, the sharing
of customers on the on-trade market, the restriction of
investment and advertising on the on-trade market, the
agreement of a new pricing structure for the on-trade
and the off-trade, and the exchange of information about
sales in the on-trade and the off-trade — is by nature a
very serious infringement. The system for exchanging
information between Interbrew and Alken-Maes made it
easier to achieve the objective of those agreements.
Since price is one of the most important factors of
competition, the various secret agreements and mechan-
isms were ultimately intended to force up the price
above the level it would have been in conditions of free
competition, to the detriment of consumers.

(298) In addition, the cartel as a whole concerned all segments
of the beer market and both the on-trade and the off-
trade. The Commission has also taken into account that
the discussions between Interbrew on the one hand and
Alken-Maes and Danone on the other were conducted
at the highest management level. It is also significant
that the agreements and concerted actions concerned a
wide variety of competition parameters (prices and
promotions, customers, investment, advertising, pricing
structure and the exchange of sales data).

( 261) OJ C 9, 14.1.1998, p. 3.
( 262) Judgment of the Court of Justice in Case T-309/94 KNP BT v
Commission (1998) ECR II-1007, paragraph 45 et seq.; this part
of the judgment was upheld by the Court of Justice on appeal
— see Case C-248/98 P KNP BT v Commission (2000) ECR
I-9641.

(299) Danone disputes that there were any price or market-
sharing agreements. However,
is clear from the
evidence available and the statements of both Interbrew
and Alken-Maes that price and market-sharing agree-
ments were actually concluded (section 6.3.1).

it

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(300) The various secret agreements of the parties were aimed
at setting higher prices to their advantage above the level
that would be attained under free competition. From the
evidence available to the Commission, it is clear that
the non-aggression pact and the agreements about
customer-sharing in the on-trade market (in part), the
restriction of advertising in the on-trade, the agreement
of a new pricing structure for the on-trade and the off-
trade, and the exchange of information about on-trade
and off-trade sales were regarded by Interbrew and
Alken-Maes at the meeting on 28 January 1998 as
having been achieved (recital 104). Interbrew has also
acknowledged that there were agreements between it
and Alken-Maes concerning promotions in the off-trade
(recital 109). Moreover, Interbrew and Alken-Maes have
acknowledged that every month they exchanged detailed
sales data with each other (section 4.4). The Commission
realises that, on the basis of the available evidence, it
must be accepted that certain parts of the cartel were
not, or not fully, implemented by Interbrew and Alken-
Maes: certain parts of the gentleman’s agreement were
not implemented (recitals 92, 107, 236 and 242), the
agreement on sharing out customers in the on-trade
market was not fully respected by Interbrew (recital 72),
and the discussions in the CBB had limited results
justify the conclusion,
(recital 241). This does not
however, that the cartel as such had no, or only a limited
effect on the market (263).

(301) The relevant geographic market is the whole territory of
Belgium; this constitutes a substantial part of the com-
mon market.

(302) Taking all

the above circumstances (recitals 297 to
301) into account, the Commission has reached the
conclusion that the infringement in question must be
regarded as very serious.

( 263) The effects on the market are crucial to the determination of the
severity of the fine only when one is dealing with agreements
which do not directly have as their object the restriction of
competition and which are not therefore liable to fall within the
scope of application of Article 81(1) except as a result of their
actual effects (opinion of Advocate General Mischo in Case
C-283/98 P Mo och Domsjö v Commission (2000) ECR I-9855).
As already established above,
the complex of agreements
between Interbrew and Alken-Maes/Danone is by nature restric-
tive of competition, which means that the extent to which
competition is restricted by the cartel does not have to be
established separately (section 6.4).

(303) In fixing the amount of the fine, the Commission also
takes account of the effective economic capacity of
offenders to cause significant damage to other operators.

(304) The participants in the cartel accounted for about 70 %
of total beer consumption, and about 80 % of all Pils
consumption, in Belgium at the time. However, there
was a considerable difference in size between Interbrew,
the number one in Belgium, and Alken-Maes,
the
number two. With an average market share of about
55 %, Interbrew was, and still is, the market leader in
Belgium. Alken-Maes had an average market share at the
time of some 15 %.

(305) The fine must be set at a level which ensures that it has
take
a deterrent effect. Here the Commission will
account of the fact that Interbrew and Danone are large
international undertakings.
It is important, too, that
Danone is a multi-product company.

(306) The Commission will also take account of the fact that
Interbrew on the one hand and Alken-Maes and Danone
on the other have legal and economic knowledge
and infrastructures which enable them more easily to
recognise that their conduct constitutes an infringement
and be aware of the consequences stemming from it
under competition law.

(307) In calculating the fine to be imposed on Interbrew, the
Commission therefore considers it appropriate, given
the gravity of the infringement, to impose a fine of
EUR 45 million. For Alken-Maes/Danone, a fine of
EUR 25 million is regarded as appropriate.

9.2.1.4. D u r a t i o n o f t h e i n f r i n g e m e n t

(308) For both Interbrew and Alken-Maes the duration of the
infringement is five years and one day. The infringement
is therefore one of medium to long duration. Bearing in
mind that the intensity of the cooperation decreased
considerably at the end of the cartel, it is considered
appropriate to increase the fine by 45 % for both
Interbrew and Danone.

(309) The basic amount of the fine is therefore EUR 65,25
million for Interbrew and EUR 36,25 million for
Danone.

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9.2.1.5. A g g r a v a t i n g c i r c u m s t a n c e s

(310) It is clear from the evidence that in August and Novem-
ber 1993 Interbrew played a leading role concerning the
price agreements in the off-trade (recitals 49 and 50). In
1995 Interbrew also took the initiative concerning price
discussions with Alken-Maes (recitals 74 and 145). At
the same time it is clear, inter alia, from a statement
originating with Interbrew itself, that the exchange of
information between Interbrew and Alken-Maes in 1992
(and perhaps earlier) was started on Interbrew’s initiative
(recital 122).

(311) The extension of the cooperation between Interbrew and
Alken-Maes in 1994, which led to the comprehensive
gentleman’s agreement known by the code name ‘Uni-
versité de Lille’, was however the result of Danone’s
intervention in relation to the Belgian market
(recitals 232 to 234).

(312) Contrary to what Danone has stated,

it cannot be
concluded from the available evidence that Interbrew
took the lead in order to realise the cartel’s aims and
agreements within the CBB. Interbrew and Alken-Maes
agreed on 29 August 1994 to use the CBB as a forum
for achieving certain parts of the cartel (recital 133),
which in fact occurred after Interbrew and Alken-Maes
had reached agreement in November 1994 over the
‘Université de Lille’ gentleman’s agreement, and the
Vision 2000 report prepared by Arthur D. Little and
commissioned by
the CBB had been presented
(recital 135 et seq.). It should be noted in this respect
that both Interbrew and Alken-Maes were represented
in the Vision 2000 working party and that the chairmen
of the four relevant subgroups were all from Alken-
Maes, except for the subgroup on investment in sales
outlets, which was chaired jointly by representatives of
Interbrew and Alken-Maes (recitals 137 and 144).

the EC Treaty twice before(264). As in the present case,
the previous infringements consisted in the exchange of
information, restrictions concerning prices and terms
and conditions of sale and, in one situation, market-
sharing agreements as well. Since Danone has committed
a further infringement after being punished for similar
breaches, this is a repeat infringement (265). The fact that
Danone operated under a different name at the time
does not alter the above. Nor does the fact that both the
earlier infringements concerned a different sector from
the present one prevent this from being a similar breach,
especially given the nature of those infringements. The
Commission regards it as relevant in this respect that
during the period (266) in which the three infringements
were committed by BSN/Danone the same person
occupied the post of chairman and chief executive. In
addition, at least two of Danone’s directors who were
responsible for food operations during the bilateral
cartel were employed in the company’s plate glass
division at the time of the earlier infringement(s) (267).

(315) Moreover, Danone threatened to destroy Interbrew on
the French market if 500 000 hl of beer were not
transferred to Alken-Maes. This led to an extension of
the cooperation between Interbrew and Alken-Maes
(recitals 232 to 234 and 236). With regard to Danone’s
role, therefore, the conclusion must be that it compelled
Interbrew to extend the cooperation, by threatening to
take measures against Interbrew if the latter did not
cooperate.

(316) Given the threat of retaliatory measures and the fact that
this was a repeat infringement, an increase in the basic
fine of 50 % is regarded as appropriate in Danone’s case.

(313) Since both Danone and Interbrew took initiatives con-
cerning various parts of the cartel, the Commission
concludes that none of the undertakings concerned
played a leading role in the cartel as a whole.

(314) It is also significant that Danone (called BSN at the time)
has already been found to have infringed Article 81 of

(264) Commission Decision 84/388/EEC (IV/30.988 — Agreements
and concerted practices in the flat-glass sector in the Benelux
countries), OJ L 212, 8.8.1984, p. 13; Commission Decision 74/
292/EEC (IV/400/EEC — Agreements between manufacturers of
glass containers), OJ L 160, 17.6.1974, p. 1.

(265) Judgment of the Court of First Instance in Case T-141/94
Thyssen Stahl v Commission (1999) ECR II-347, paragraph 617.
(266) At least until 2.5.1996, see Danone’s website (www.danoneg-
roup.com) and the company’s reply to the statement of objec-
tions, 30.11.2000.

(267) Annex 28 to Danone’s reply to the request for information,

10.5.2000 (doc. 37614 09915-09938).

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9.2.1.6. A t t e n u a t i n g c i r c u m s t a n c e s

were they expected of
the brewers by the Belgian
government. Second, price control concerned the
the ratification of
approval of price increases, not
nominal prices proposed by undertakings.

(317) The fact that infringing agreements or rules of conduct
are not actually applied is an attenuating circumstance.
The Commission acknowledges that it is clear from the
evidence that the parties did not fully apply each specific
agreement of the cartel (recital 300). This does not
mean, however, that the cartel as such was not actually
applied. The fact that some parts of the infringement
were not put into effect is in itself not sufficient to be
able to say that there is an attenuating circumstance in
the above sense.

(318) As far as Alken-Maes is concerned, however, it must be
terminated the exchange of
borne in mind that it
information with Interbrew after the Commission’s
inspection on 26 and 27 October 1999.

(319) This circumstance justifies a reduction of the basic
amount of the fine by 10 % in the case of Alken-Maes/
Danone.

(320) The Belgian system of price control is not a reason for
reducing the fine. Price control in the beer sector was
only in force until 1 May 1993. Furthermore, this system
obliged the parties to request approval for a price
increase either individually or collectively through their
trade association, not to conclude agreements or consult
about prices (recital 247). Danone referred in this
connection to the Commission’s decision concerning
Greek ferries (268). In that case, the Commission took
account of the attenuating circumstance that during the
period of the infringement a collective proposal for
domestic rates had been expected from the undertakings
concerned themselves and was subsequently confirmed
by the Greek government. Because of this, there could
have been some doubt about whether the fixing of
international rates constituted an infringement. This
situation is not comparable with the present case for the
following reasons. First, legislation did not provide that
brewers were to submit a collective request for a price
increase themselves; they were to act through their trade
association. Consultations between the brewers about
their prices and cost structures were not the direct
consequence of the Belgian system of price control, nor

( 268) Decision 1999/271/EC (IV 34.466 — Greek ferries), OJ L 109,

27.4.1999, p. 24.

(321) Danone also submits that the Commission must take
account of the crisis in the Belgian beer market. The
Commission acknowledges that in the 1990s demand
was declining slightly (recital 6), which possibly led to
some overcapacity, and that there was pressure from
distributors in the off-trade. This situation is not compar-
able, however, with cases where the Commission has
ruled that in determining the amount of the fine account
must be taken of a crisis on the market (269). The
Commission would point out in this respect that the
decline in Belgian beer production at the time was
appreciably less steep than that in beer consumption
(recital 6). The individual financial situation of one party
to an infringement, in this case Alken-Maes, cannot lead
to the reduction of the amount of the fine. This would
be tantamount to conferring an unjustified competitive
advantage on undertakings least well adapted to the
that an
requirements of
undertaking suffers a loss, moreover, does not mean that
it has derived no advantage from an infringement of the
competition rules, since that advantage may consist in a
reduction of its losses.

the market (270). The fact

(322) Danone also states that account must be taken of the
position of dependence which Alken-Maes was in at the
time of the infringement with regard to Interbrew. The
Commission takes the view that, as already discussed
above (recital 247), Alken-Maes’s attempt to put an end
to a possible infringement of Article 82 of the EC Treaty
by Interbrew cannot be accepted as a defence for
participation in a cartel. Also, Danone’s statement passes
over the involvement of Danone, Alken-Maes’s parent

(269) See, for example, Commission Decision 94/815/EC (IV/33.126
and 33.322 — Cement), OJ L 343, 30.12.1994, p. 1; Com-
mission Decision 94/599/EC (IV/31.865 — PVC), OJ L 239,
14.9.1994, p. 14; and Commission Decision of 8 December
1999 (IV/E1/35.860 B Seamless steel tubes, not yet published).
(270) Judgment of the Court of Justice in Joined Cases 96-102, 104,
105, 108 and 110/82 IAZ v Commission (1983) ECR 3369.

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company,
in the cartel. Lastly, the difference in size
between Alken-Maes and Interbrew has already been
taken into account in determining the basic amount of
the fine.

further than answering the request for information
under Article 11 of Regulation No 17. The Commission
considers that this circumstance justifies reducing the
fine.

9.2.1.7. C o m m i s s i o n n o t i c e o f 1 8 J u l y
1 9 9 6 o n t h e n o n - i m p o s i t i o n o r
r e d u c t i o n
c a r t e l
c a s e s

f i n e s

o f

i n

(323) Interbrew and Alken-Maes have both invoked the Com-
mission notice of 18 July 1996 on the non-imposition
or reduction of fines in cartel cases (hereinafter also
referred to as ‘the notice’).

(324) The information which Interbrew supplied after a
request for information was sent under Article 11 of
Regulation No 17 contributed significantly to proving
the relevant facts. This cooperation with the Commission
went further than simply replying to the request for
information within the meaning of Article 11 of Regu-
lation No 17. Furthermore, Interbrew has not substan-
tially disputed the facts on which the Commission is
basing the allegation of infringement.

(325) Interbrew’s cooperation justifies a reduction of 30 % in

the fine under section D.2. of the notice.

that the facts were not

(326) Although Alken-Maes stated during the proceedings that
it did not dispute the facts and the existence of the
infringement, it, like Danone, declared, in reply to the
in
statement of objections,
dispute only in so far as they were based in part on
information supplied to the Commission by Alken-
Maes (271). Moreover, Danone, on its own behalf and on
behalf of Alken-Maes, cast doubt on the existence of the
infringement as described by the Commission in the
statement of objections. This does not justify a reduction
of the fine within the meaning of the second indent of
section D.2. of the notice.

(327) Alken-Maes did, however, supply information about the
existence and substance of the infringement which went

( 271) ‘Without denying the existence of the events that occurred
during the period in question, in so far as they are in part based
on the information provided by Alken-Maes’s representatives to
the Commission’s officials (...)’ (‘Sans contester l’existence des
faits intervenus dans la période en cause dans la mesure où
ceux-ci sont en partie fondés sur les informations fournies par
les représentants d’Alken-Maes aux agents de la Commission
(...)’) (Danone); ‘Alken-Maes does not dispute the reality of the
contacts and practices between Interbrew and Alken-Maes
during the period covered by the statement of objections, in so
far as they are in part based on the information provided by
the representatives of Alken-Maes itself to the Commission’s
officials’ (‘Alken-Maes ne conteste pas la matérialité des contacts
et pratiques entre Interbrew et Alken-Maes durant la période
couverte par la Communication des griefs (la “CG”) dans la
mesure où ceux-ci sont en partie fondés sur les informations
fournies par les représentants d’Alken-Maes elle-même aux
agents de la Commission’) (Alken-Maes).

(328) In Danone’s case, therefore, the Commission regards a
reduction of 10 % in the fine as appropriate under the
first indent in section D.2 of the notice.

9.2.1.8. C o n c l u s i o n s

r e g a r d i n g

t h e

a m o u n t o f t h e f i n e s

(329) A fine of EUR 45,675 million should be imposed on
Interbrew for its participation in the Interbrew/Alken-
Maes cartel.

(330) A fine of EUR 44,043 million should be imposed on
Danone for its own participation and that of its subsidi-
ary, Alken-Maes.

9.2.2. The private-label cartel

9.2.2.1. O n

w h o m s h o u l d

f i n e s

b e

i m p o s e d ?

(331) As regards the private-label cartel, a fine should be
imposed on the undertakings which committed this
infringement, namely Interbrew, Alken-Maes, Haacht
and Martens. Although Alken-Maes was a subsidiary of
Danone at the time, the Commission does not consider
it appropriate to attribute the infringement to Danone,
since Danone itself was not involved in the private-label
cartel (272).

9.2.2.2.

I n t e n t i o n o r n e g l i g e n c e

(332) As consistently held by the Court of Justice and the
Court of First Instance,
is not necessary for an
it
undertaking to have been aware that it was breaching
Article 81 or infringing the prohibition contained in
that provision for an infringement to be regarded as
intentional. It is sufficient that it could not have been
unaware that the contested conduct had as its object or
effect the restriction of competition in the common
market and entailed actual or potential consequences for
trade between Member States (273).

(272) Judgment of the Court of First Instance in Case T-309/94 KNP
BT v Commission (1998) ECR II-1007, paragraph 45 et seq.

(273) Judgments of the Court of

Justice in Case 19/77 Miller v
Commission (1978) ECR 131, paragraph 18, and Case C-279/87
Tipp-Ex v Commission (1990) ECR I-261; judgment of the Court
of First Instance in Joined Cases T-202/98, T-204/98 and T-207/
98 Tate & Lyle v Commission, not yet reported.

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(333) The Commission considers that none of the participants
in the private-label cartel could have been unaware that
their conduct was intended to restrict competition
within the common market. Direct contacts between
competitors concerning prices and the distribution of
customers are invariably regarded as suspect from a
competition standpoint,
irrespective of whether they
take place within a trade association, as Martens submit-
ted in order to demonstrate its ignorance in the matter.
Nor could the undertakings concerned have been
unaware that their conduct entailed possible conse-
quences for trade between Member States.

(334) Even if the discussions did take place within the CBB, as
alleged by Martens in order to show that there was a
forgivable error or good faith on its part, there would
still be an intentional infringement of Article 81(1) EC
by the participants in those discussions. This defence of
Martens’s is therefore irrelevant to the assessment of
whether it committed the infringement intentionally.

9.2.2.3. G r a v i t y o f t h e i n f r i n g e m e n t

serious. To achieve the aim of the consultation (not to
bid against each other’s contracts, in order to prevent a
price war), it was not necessary to exchange information
on a regular basis.
It cannot simply be concluded,
therefore, that the cartel as such had no, or a limited,
impact on the market (274).

(338) As regards the size of the relevant geographic market,
the Commission also takes into account that while the
meetings may have concerned the whole territory of
Belgium they were limited to the private-label Pils
segment of the market (which accounts for 5,5 % of
total beer consumption in Belgium — recital 8).

(339) In view of the above, the Commission considers that
this infringement is a serious breach of Article 81(1) of
the EC Treaty.

(335) Horizontal coordination of prices and market sharing is
by its nature a very serious infringement. The exchange
of information was a means of putting this coordination
into effect.

(340) In fixing the amount of the fine, the Commission must
also take account of the effective economic capacity of
offenders to cause significant damage to other operators
and must set the fine at a level which ensures that it has
a deterrent effect.

(336) Martens disputes that there were any price or market-
sharing agreements. It is clear from the available evidence
and the statements of both Interbrew and Haacht,
however, that prices and market sharing were coordi-
nated at the four meetings (recital 252). Apart from
the inherently serious nature of such conduct, the
Commission,
in assessing the gravity of the present
infringement, also takes account of its impact on the
market and the size of the relevant geographic market.

free

(337) As regards the impact on the market, it should be noted
that the various secret practices of the parties were
aimed at sharing out customers and ultimately at fixing
prices above the level they would have attained under
competition. The Commission
conditions of
acknowledges that it does not have proof
that the
consultation, with perhaps one exception, resulted in any
alteration of the market behaviour of the undertakings
concerned. It is clear, in any event, that at the meetings
of the private-label cartel customer sharing and prices
were discussed and that information was exchanged in
this respect. The fact that information on private-label
beer in Belgium may have been exchanged between the
Belgian brewers only once does not make this any less

(341) In order to allow for the actual capacity of the undertak-
ings concerned to cause significant damage on the beer
market in Belgium,
in particular in the private-label
segment, the Commission therefore considers it appro-
priate to differentiate between those undertakings. Tak-
ing account of their turnover in private-label beer,
the Commission divides the undertakings into two
categories. Haacht and Martens, who had the highest
turnovers in the private-label segment, form one catego-
ry. Interbrew and Alken-Maes, who had substantially
lower turnovers in the segment, form the second.

(274) In determining the severity of the fine, the effects on the market
are crucial only when one is dealing with agreements which do
not directly have as their object the restriction of competition
and which are not therefore liable to infringe Article 81(1)
except as a result of their actual effects (opinion of Advocate
General Mischo in Mo och Domsjö, see footnote 263). As already
shown above, the private-label cartel is by nature restrictive of
competition, which means that the extent of the restriction of
competition as a result of the cartel does not have to be
established separately (section 6.4).

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(342) The Commission therefore considers it appropriate to
impose the following fines in respect of the gravity of
the infringement:

9.2.2.6. A t t e n u a t i n g c i r c u m s t a n c e s

on Haacht and Martens: EUR 300 000;

on Interbrew and Alken-Maes: EUR 250 000.

(343) The Commission considers that the basic amount of the
fine thus calculated for Interbrew and Alken-Maes should
be adjusted in order to ensure that the fine has a
sufficiently deterrent effect, and to take account of the
fact that, in contrast to Haacht and Martens, Interbrew,
as a large international undertaking, and Alken-Maes, as
a member of an international group, have easier access
to legal and economic knowledge and infrastructures
which enable them more easily to recognise that their
conduct constitutes an infringement and be aware of the
consequences stemming from it under competition law.

(344) To allow for their respective sizes and general resources,
the Commission considers that the amount of the fines
calculated in recital 342 should in Interbrew’s case be
multiplied by a factor of 5, and in Alken-Maes’s case by
a factor of 2. This results in a fine of EUR 1 250 000 for
Interbrew and a fine of EUR 500 000 for Alken-Maes.

9.2.2.4. D u r a t i o n o f t h e i n f r i n g e m e n t

(345) The duration of the infringement is fixed at nine months,
which is not disputed by any of the parties. This does
not warrant an increase in the fine.

(346) For each of the undertakings concerned, therefore, the
basic amount of the fine is as set out in recitals 342 and
344.

(348) The parties submit as an attenuating circumstance that
they did not actually apply the infringing agreement or
practice. In particular, they state that the practice did not
alter market behaviour. The Commission acknowledges
that on the basis of the available evidence there is no
proof, with possibly one exception, that the parties
refrained from bidding for other brewers’ customers in
order to prevent a price war. It cannot be inferred from
this, however, that the infringing practice was not
applied, since at the four meetings the parties did actually
exchange information on customers and volumes and
discussed customers and prices.

(349) Haacht and Martens have both indicated that their
participation in the cartel should be regarded as passive.
The Commission points out, however, that both under-
takings played an active part in the private-label cartel.
They were present at all the meetings known to the
Commission. In addition, Haacht has acknowledged that
it exchanged information about private-label beer in
Belgium with the other brewers involved and made
agreements on prices and sharing customers. It is also
significant that Martens took an active part in the
discussions, as is substantiated by its attempt to invite
Dutch private-label brewers to the meetings. Martens
has not shown that it was reluctant to take part in the
meetings.

(350) Nor can the need of both Haacht and Martens to gather
information about developments concerning private-
label beer justify the infringement of the Community
competition rules.

9.2.2.5. A g g r a v a t i n g c i r c u m s t a n c e s

(347) From a statement originating with Interbrew it is clear
that Interbrew and Alken-Maes took the initiative to
hold meetings about private-label beer (recital 157). This
has been confirmed by Haacht in its reply to the
statement of objections (recital 198). The Commission
therefore considers it appropriate to increase the basic
fine by 30 % in the case of both Interbrew and Alken-
Maes.

(351) There is no reason why the fine for Haacht should reflect
the fact that the company’s sales of private-label beer
account for a small proportion of its total turnover. The
starting points for calculating the amount of the fine are
the gravity and duration of
the infringement. The
Commission acknowledges that in the past it has set
fines according to a basic rate which was a percentage
of the relevant turnover. Under Article 15(2) of Regu-
lation No 17, however, the only restrictions on the
Commission’s freedom to determine the fine are the
legal thresholds mentioned in that provision, which
refer, inter alia, to the total turnover of the participating
undertakings. For the rest, the Commission took due

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account of the economic importance of the specific
activity to which the infringement related when it
assessed the gravity of the infringement.

(352) Recital (351) also applies to Martens’s argument that,
when calculating the fine, the Commission must take
account of the fact that Martens, according to its own
submission, did not benefit as a result of the meetings.
The fact that the Commission has in the past taken the
benefit obtained as the starting point for calculating the
fine does not oblige it to do the same in the present
case. The Commission will take the amount of gains
improperly made from the infringement into account as
an aggravating circumstance, where it is necessary to
increase the penalty in order to exceed the profit made
from the infringement. It cannot be inferred that where
there is no such need that fact should be regarded as an
attenuating circumstance.

(353) Martens’s argument

that a symbolic fine should be
imposed, in view of the decision in the Fenex case (275),
must be rejected. The Court of Justice has held that the
Commission’s judgment concerning the fines it considers
necessary may vary from case to case, even if
the
cases are similar (276). Regardless of whether there was
inexperience on Martens’s side, the present case is not
comparable with the situation in the Fenex case, which
involved negligence rather than intention. Moreover, the
difference between Interbrew and Alken-Maes on the
one hand and Martens and Haacht on the other as
regards legal and economic knowledge has already been
taken into account in the assessment of the gravity of
the infringement (recital 343).

9.2.2.7. C o m m i s s i o n n o t i c e o f 1 8 J u l y
1 9 9 6 o n t h e n o n - i m p o s i t i o n o r
c a r t e l
r e d u c t i o n
c a s e s

f i n e s

i n

o f

(355) All the undertakings concerned have invoked the notice.

(356) Interbrew considers that, in accordance with section C,
it is eligible for a substantial reduction of the fine. The
Commission acknowledges that Interbrew drew the
Commission’s attention to the private-label cartel before
the Commission had undertaken an investigation into
the infringement and before it had any information
about it. The infringement was also terminated before
the Commission was informed of its existence, and
Interbrew cooperated fully and without interruption
throughout the investigation. However, Interbrew is not
eligible for a substantial reduction of the fine, since it
took the initiative to hold the discussions on private-
label beer.

(357) Interbrew is eligible, however, for a significant reduction
of the fine in accordance with section D. The Com-
mission will take account of the fact that Interbrew
brought the existence of the concerted practice to light
when the Commission was still completely unaware of
the matter and cooperated fully and without interruption
throughout the investigation. In addition, Interbrew has
not substantially contested the facts on which the
Commission has based the allegation of infringement.
The Commission therefore considers that a reduction in
the fine for Interbrew of 50 % is appropriate.

(354) Martens and Haacht both asked the Commission to
take account of their difficult financial situation when
determining the amount of the fine. The individual
financial situation of a party to an infringement cannot
be a reason for reducing the amount of the fine.
This would be tantamount to conferring an unjustified
competitive advantage on undertakings least well adapt-
ed to the conditions of the market (277).

(358) Alken-Maes has not substantially contested the facts on
which the Commission based the allegation of a private-
label cartel. However, its cooperation with the Com-
mission regarding this infringement went no further
than simply answering the Commission’s official request
for
information, dated 22 March 2000, under
Article 11(1) of Regulation No 17.

( 275) See footnote 233.
( 276) Judgment of the Court of Justice in Joined Cases 32 and 36 to

82/78 BMW Belgium v Commission (1979) ECR 2435.

( 277) Judgment of the Court of Justice in Joined Cases 96 to 102,
104, 105, 108 and 110/82 IAZ v Commission (1983) ECR 3369.

(359) The Commission therefore considers that in Alken-
Maes’s case a reduction of 10 % in the fine is appropriate
in accordance with the second indent of section D.2. of
the notice.

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(360) Haacht has not substantially contested the facts on
which the Commission has based the allegation of a
private-label cartel. However, the information which it
supplied to the Commission goes no further than its
reply to the Commission’s official request for infor-
mation, dated 22 March 2000, under Article 11(1) of
Regulation No 17.

(368) A fine of EUR 270 000 should be imposed on Martens

for taking part in the private-label cartel,

HAS ADOPTED THIS DECISION:

Article 1

(361) Haacht is therefore eligible for a reduction of 10 % in
the fine in accordance with the second indent of
section D.2 of the notice.

(362) In its reply to the statement of objections, Martens
disputed the existence of the infringement as described
by the Commission in that statement. In addition, the
information supplied by Martens before the statement
of objections was sent went no further than the under-
taking’s reply to the Commission’s official request for
information, dated 22 March 2000, under Article 11(1)
of Regulation No 17.

Interbrew NV, Brouwerijen Alken-Maes NV and Groupe
Danone SA have infringed Article 81(1) of the EC Treaty by
taking part in a complex set of agreements and/or concerted
practices relating to a general non-aggression pact, prices and
promotions in the off-trade, customer sharing in the on-trade
(both the ‘traditional’ sector and national customers), the
restriction of investment and advertising in the on-trade, a
new pricing structure for the on-trade and the off-trade, and
the exchange of information about sales in both the on-trade
and the off-trade during the period from 28 January 1993 to
28 January 1998.

Article 2

(363) The documents which Martens supplied to the Com-
mission after the statement of objections was sent either
serve to underpin its own defence or point to the
possible existence of a separate infringement of the
competition rules. Neither circumstance, however, mer-
its a reduction of the fine which is being imposed on
Martens for taking part in the private-label cartel.

The following fines are hereby imposed on Interbrew NV and
Groupe Danone SA in respect of the infringements found in
Article 1:

a)

on Interbrew NV: a fine of EUR 45,675 million;

b)

on Groupe Danone SA: a fine of EUR 44,043 million.

(364) During the proceedings, however, Martens did cooperate
in a manner that speeded up the proceedings. This
cooperation warrants a reduction of 10 % in the fine in
accordance with section D of the notice.

Article 3

Interbrew NV, Brouwerijen Alken-Maes NV, NV Brouwerij
Haacht and NV Brouwerij Martens have infringed Article 81(1)
of the EC Treaty by taking part
in a concerted practice
concerning prices, customer sharing and the exchange of
information with regard to private-label beer in Belgium
during the period from 9 October 1997 to 7 July 1998.

9.2.2.8. C o n c l u s i o n s

c o n c e r n i n g

t h e

a m o u n t o f t h e f i n e s

Article 4

(365) A fine of EUR 812 000 should be imposed on Interbrew

for taking part in the private-label cartel.

The following fines are hereby imposed on the undertakings
referred to in Article 3 in respect of the infringements found
therein:

(366) A fine of EUR 585 000 should be imposed on Alken-

Maes for taking part in the private-label cartel.

(a)

on Interbrew NV: a fine of EUR 812 000;

(b) on Brouwerijen Alken-Maes NV: a fine of EUR 585 000;

(c)

on NV Brouwerij Haacht: a fine of EUR 270 000;

(367) A fine of EUR 270 000 should be imposed on Haacht

for taking part in the private-label cartel.

(d) on NV Brouwerij Martens: a fine of EUR 270 000.

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Article 5

refinancing operations on the first day of the month in which
this Decision is adopted, plus 3,5 percentage points.

this
Within three months of the date of notification of
Decision, the fines shall be paid by the undertakings referred
to in Articles 2 and 4 into the following Commission bank
account:

Account No 642-0029000-95 (IBAN Code BE76 6420 0290
0095; SWIFT Code BBVABEBB), of the European Commission
at Banco Bilbao Vizcaya Argentaria (BBVA), Kunstlaan 43
Avenue des Arts, B-1040 Brussels.

After the expiry of
the deadline referred to in the first
subparagraph, interest shall be automatically payable at the
interest rate applied by the European Central Bank for its main

Article 6

This Decision is addressed to:

(a)

Interbrew NV, Vaartstraat 94, B-3000 Leuven;

(b) Groupe Danone SA, 7 rue de Téhéran, F-75008 Paris;

(c) Alken-Maes NV, Waarloosveld 10, B-2550 Waarloos;

(d) NV Brouwerij Haacht, Provinciesteenweg 28, B-3190

Boortmeerbeek;

(e) NV Brouwerij Martens, Reppelerweg 1, B-3950 Bocholt;

This Decision shall be enforceable pursuant to Article 256 of the EC Treaty.

Done at Brussels, 5 December 2001.

For the Commission

Mario MONTI

Member of the Commission