Case T-49/02: Action brought on 26 February 2002 by Brasserie Nationale against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, Luxembourg, action for annulment (EU), beverage industry, exclusive distribution agreement, fine, restrictive trade practice

C 109/62

EN

Official Journal of the European Communities

4.5.2002

Finally, the applicants submit that the objectives of the Council
in the directives cited are not covered by Community law and
are therefore a direct cause of the refusal to disclose the
accounts, and that the causal link between the objectives of
the directive and the damage caused and anticipated is thus
clear.

(1) First Council Directive 68/151/EEC of 9 March 1968 on co-
ordination of safeguards which, for the protection of the interests
of members and others, are required by Member States of
companies within the meaning of
the second paragraph of
Article 58 of the Treaty, with a view to making such safeguards
equivalent throughout the Community (OJ, English Special Edition
1968(I), p. 41).

(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 54 (3) (g) of the Treaty on the annual accounts of certain
types of companies (OJ 1978 L 222, p. 11).

Action brought on 27 February 2002 by Brouwerij
Haacht N.V. against the Commission of the European
Communities

(Case T-48/02)

(2002/C 109/118)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 February 2002 by Brouwerij
Haacht N.V., established at Boortmeerbeek (Belgium), rep-
resented by Yves van Gerven, Frédéric Louis and Hendrik
Viane, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Article 4 of the decision in issue, in so far as it
concerns Brouwerij Haacht N.V. and, in so far as may be
necessary, order that no fine be imposed on Brouwerij
Haacht N.V. or substantially reduce the fine;

— order the Commission to pay the costs in any event.

The applicant claims that the Commission has failed to comply
with the obligation to provide a statement of reasons as
prescribed by Article 253 of the EC Treaty, and with the
guidelines for the calculation of
fines. According to the
applicant, the Commission, in determining the actual econ-
omic power of the parties concerned, failed to define the
relevant market. It maintains that the decision does not make
it clear whether the relevant market is the private label market
or the beer market in general. Moreover, the Commission
over-estimated the economic power of the applicant in the
market for private label beer, if and in so far as it is that market
which is to be regarded as the relevant market. The applicant
further argues that the Commission wrongly characterised the
role played by the applicant in the cartel in question as an
active role. According to the applicant,
its role must be
regarded as having been purely passive, or at least as less
active.

the significance of

Lastly, the applicant pleads infringement of the Notice on
Cooperation and of the principle of equal treatment. According
to the applicant, the Commission failed to take sufficient
the applicant’s statements
account of
proving the infringement of
the rules. The Commission
consequently treated similar situations in a dissimilar way, by
not applying the same reduction in the fine where there was a
comparable level of cooperation. Moreover, the Commission
treated dissimilar situations in a similar way, by applying the
same reduction in the fines imposed on the applicant and on
parties who cooperated less, or not at all, in the Commission’s
investigation.

Action brought on 26 February 2002 by Brasserie Natio-
nale against the Commission of the European Communi-
ties

(Case T-49/02)

(2002/C 109/119)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 26 February 2002 by Brasserie
Nationale, established at Bascharage (Luxembourg), represent-
ed by Alexandre Carnelutti and Jean-Louis Schiltz, lawyers,
with an address for service in Luxembourg.

Pleas in law and main arguments

The action is directed against the decision in so far as it
imposes a fine on the applicant in consequence of the private
label cartel on the Belgian beer market.

— annul Article 1 of the Commission’s decision of 5 Decem-
ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-

The applicant claims that the Court should:

4.5.2002

EN

Official Journal of the European Communities

C 109/63

bourgeoises, in so far as it finds that the applicant has
infringed Article 81(1) of the Treaty;

— in any event, annul Article 2 of the decision in so far as it
imposes a fine on the applicant, alternatively, reduce that
fine substantially;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present application is directed against the Commission’s
decision establishing the existence of a cartel set up by an
agreement signed on 8 October 1985 between five Luxem-
bourg breweries,
including the applicant, with a view to
ensuring observance of exclusivity clauses, known as ‘beer
clauses’, which are characteristic of contracts concluded
between brewers and operators in the hotels/restaurants/cafés
(HORECA) sector, both in Luxembourg and throughout the
Community. The object of that agreement was allegedly to
enable the parties thereto to retain their respective customers
in the Luxembourg HORECA sector and to prevent foreign
brewers from penetrating that sector.

In support of
following pleas in law:

its claims, the applicant puts forward the

— The Commission committed an error of law by omitting,
and refusing to consider itself obliged, to take account of
the economic context of which the agreement formed
part when carrying out its assessment of all of the clauses
examined by it, and thus of the purpose of the agreement
in question.

— The Commission committed an error in its analysis of
the scope of the said agreement, by finding that it applied
in the absence of a supply contract or beer clause, and
thus committed an error of assessment, inasmuch as it
based its negative assessment of the agreement on that
presumed scope.

— The Commission committed an error of fact in taking the
view that the purpose of the agreement was to prevent
penetration of the market by foreign brewers and that it
significantly affected competition.

The applicant stresses that the agreement was concluded on
account of an abnormal risk situation created by a situation
under national law in which fair competition was directly
threatened. Consequently, limited cooperation between brew-
ers, proportionate to the objective pursued, became the only
way of ensuring that the ‘beer clauses’ were safeguarded.

As regards the amount of the fines, the applicant pleads
infringement of Article 15(2) of Regulation No 17 and non-
compliance with the obligation to provide a statement of
reasons.

Action brought on 26 February 2002 by Brasserie Battin
against the Commission of the European Communities

(Case T-51/02)

(2002/C 109/120)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 26 February 2002 by Brasserie
Battin, established at Esch sur Alzette (Luxembourg), represent-
ed by Alexandre Carnelutti and Marie Santini, lawyers, with an
address for service in Luxembourg.

The applicant claims that the Court should:

fact,

— The Commission committed an error of assessment in
characterising the agreement as an agreement by the
contracting parties to retain their respective customers.
In actual
its central and sole purpose was to
ensure observance of the contractual exclusivity agreed
to between retailers and brewers. The agreement
in
question was therefore intended solely to constitute a
legitimate instrument of horizontal cooperation aimed at
guaranteeing compliance with a decisive element affecting
the economy, development and fair competition in that
sector.

— annul Article 1 of the Commission’s decision of 5 Decem-
ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
bourgeoises, in so far as it finds that the applicant has
infringed Article 81(1) of the Treaty;

— in any event, annul Article 2 of the decision in so far as it
imposes a fine on the applicant, or alternatively reduce
that fine substantially;

— order the Commission to pay the costs.