2005/503/EC: Commission Decision of 29 September 2004 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/C.37.750/B2 — Brasseries Kronenbourg — Brasseries Heineken) (notified under document number C(2004) 3597)
Date: 2004-09-29
Institutions: European Commission
Subjects: beverage industry, control of restrictive practices, fine, sanction (EU), unlawful agreement

15.7.2005

EN

Official Journal of the European Union

L 184/57

COMMISSION

COMMISSION DECISION

of 29 September 2004
relating to a proceeding under Article 81 of the EC Treaty (Case COMP/C.37.750/B2 — Brasseries
Kronenbourg — Brasseries Heineken)

(notified under document number C(2004) 3597)

(Only the Dutch and French versions are authentic)

(2005/503/EC)

the EC Treaty.

On 29 September 2004, the Commission adopted a decision relating to a proceeding under Article 81
of
In accordance with the provisions of Article 30 of Council Regulation (EC)
No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content
of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings
in the protection of their business interests. A non-confidential version of the full text of the decision can
be found in the authentic languages of the case and in the Commission’s working languages at DG
COMP web-site at http://europa.eu.int/comm/competition/index_en.html

I. INTRODUCTION

(3)

On February 4, 2004 the Commission opened the
proceedings and adopted a statement of objections
against Brasseries Kronenbourg SA, Heineken France
SA, Groupe Danone and Heineken NV. All parties have
submitted a written reply to the Commission. They have,
however, renounced their right to a hearing.

(1)

(2)

The decision relates to an ‘armistice’ agreement regarding
the sale of beer in France for consumption away from
home (on-trade sector). The Commission has gathered
evidence showing that on 21 March 1996,
the two
main brewery groups in France, Brasseries Kronenbourg
SA and Heineken France SA (previously: Sogebra) and
their respective mother companies at the time of the
facts, Groupe Danone
have
concluded this agreement, following an ‘acquisition war’
regarding drinks wholesalers. The agreement concerns,
on the one hand, the acquisition of drinks wholesalers,
with the aim of bringing a rapid end to the rising costs
of acquiring these companies, and on the other hand, the
balancing of the integrated distribution networks of the
agreement has,
concerned. The
parties
however, never been implemented.

and Heineken NV,

‘armistice’

II. SUMMARY OF THE CASE

1. Origin of the case and procedural steps

cartel

The case started on the basis of information provided by
Interbrew NV (now Inbev NV) in the framework of the
(Commission Decision
case
Belgian brewery
2003/569/EC of 5 December 2001 relating to a
the EC Treaty,
proceeding pursuant
(Case IV/37.614/F3 PO/Interbrew and Alken-Maes)
(OJ
L 200, 7.8.2003, p. 1)). On the basis of this information,
inspections in the
the Commission conducted several
year 2000 and has completed its
investigation by
requests for information.

to Article 81 of

(1) OJ L 1, 4.1.2003, p. 1.

2. The sector concerned

(4)

This case concerns the sales of beer in France in the on-
trade sector.

(5)

Together, the companies participating in the agreement
represented approximately three quarters of the volume
of beer consumed in France in 1999.

3. Nature of the infringement

(6)

The Commission withheld the following infringement:
on 12 February 1996, Heineken NV and Heineken
France SA announced their intention to acquire the
groups Fischer and Saint Arnould to Groupe Danone
and Brasseries Kronenbourg SA. Since
the groups
Fischer and Saint Arnould distributed an important
volume of Kronenbourg beer, this triggered a genuine
acquisition war. Each brewery group thus acquired a
large number of drinks wholesalers, leading to a strong
inflation of the acquisition price of such wholesalers. On
21 March 1996, Brasseries Kronenbourg SA, Heineken

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respective mother companies,
France SA and their
Groupe Danone and Heineken NV, therefore concluded
an ‘armistice’ agreement
regarding the acquisition of
wholesalers and the balancing of their integrated distri-
bution networks. In particular, they agreed on:

meaning of article 81 of the Treaty even if the agreement
did not produce any effects.

2. Appreciable effect on trade between Member
States

— a temporary acquisition stop (prohibition to proceed
with acquisitions of wholesalers outside an agreed
list),

— the balancing of the total volume of beer distributed

through the network of each party, and

— the balancing of the volume of beer brands commer-
cialised by each party which should be distributed by
the other party.

(10)

(11)

(7)

(8)

(9)

and

The agreement is made clear from an internal note of the
group Heineken. Groupe Danone
Brasseries
Kronenbourg SA have moreover not contested the
existence of the armistice agreement. It should however
be noted that the Commission does not have any proof
of implementation of the agreement. On the contrary,
certain wholesalers
indicated on the agreed list as
attributed to one party have finally been acquired by
the other party and the parties continued to acquire
wholesalers outside the agreed list. Moreover,
in the
tended to
period from 1996 to 2002,
their competitors’ beer by their own beer
supplant
within the distribution network under their control. An
agreement
equilibrium between
brands thus became pointless.

intended to ensure

the parties

III. LEGAL ASSESSMENT

1. Restriction by subject

The ‘armistice’ agreement of 21 March 1996 was first
intended to control
investment by the Heineken and
Danone groups, since its purpose was to bring about a
rapid end to the rising cost of acquiring wholesalers.
Moreover, the agreement is akin to one whose purpose
was to share the on trade-markets between the two
groups.
Indeed, by establishing the dual equilibrium
mentioned in point 2.3 above, the parties were aiming
to ensure that one party did not dominate the other on
this market.

It is settled case-law that, for the purpose of applying
Article 81(1), of the Treaty, there is no need to take
account of the actual effects of an agreement once it
appears that
its aim is to prevent, restrict or distort
competition within the common market. Since the
agreement at issue in this case had as its object the
restriction of competition by requiring a freeze on acqui-
sitions and by establishing equilibrium between the
parties’ integrated distribution networks, the Commission
there is an infringement within the
concludes

that

affect

undertakings may

in order that an agreement
It is settled case-law that,
between
between
trade
Member States, it must be possible to envisage, with a
sufficient degree of probability on the basis of a set of
that it may have an
law or fact
objective factors of
influence, direct or
the
indirect, actual or potential,
pattern of
trade between Member states. This is the
case here.

in France. Under

these circumstances,

the French breweries
The distribution networks of
the main means of access to the
constitute one of
for foreign breweries that do not have such
market
networks
the
armistice agreement, which aims at establishing equi-
librium at national
level between the integrated distri-
bution networks of Heineken NV/Heineken France SA
and Groupe Danone/Brasseries Kronenbourg SA, could
influence the conditions of access
to the on-trade
market for foreign breweries and thus the volume of
importations. Moreover,
Interbrew France, main
importer of beer in France, depended and still depends
on the distribution networks of Heineken France SA and
Brasseries Kronenbourg SA to distribute an important
volume of
in
France. An agreement that aims at restricting compe-
tition between the distribution networks of the latter
companies could influence the commercial conditions
which these companies propose to Interbrew France for
the distribution of its products.

its product on the on-trade market

IV. FINES

1. Basic amount

Gravity of the infringement

(12)

The Commission takes into account: (i) the nature of the
infringement; (ii) its actual impact on the market when
this can be measured, and (iii) the size of the relevant
geographic market.

(i) The armistice agreement is a horizontal agreement
designed to restrict competition between under-
takings holding large market shares. However, an
agreement designed to bring wholesaler acquisition
costs under control in the short term by putting an
end to an acquisition war cannot be regarded as a
clear
infringement on a par with a price-fixing
the agreement establishing
agreement. As
longer-term equilibrium between the two brewery
groups’ distribution networks
is concerned, any
akin to a market-sharing
such agreement
involved is not
agreement. However, what
market sharing in the ‘conventional’ sense, since the
agreement was intended mainly to prevent one group
from dominating the market rather than to eliminate
all competition between the groups or impede third
parties.

far as

is

is

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(ii) The agreement was not implemented and therefore

did not have any impact on the market.

(iii) Concerning the scope of the geographic market, the
the
Commission takes into account
agreement covers the whole of mainland France,
but
it was confined to the on-trade sector,
which accounts for less than one third of the total
sales volume in France.

the fact

that

that

(13) On the basis of all

these elements,

the Commission
considers
this decision have
committed a serious infringement to article 81 of the
Treaty.

the addressees of

that

in the

market (Commission Decision 84/388/EEC of 23 July
1984 relating to a proceeding under Article 85 of the
EEC Treaty ( IV/30.988 — Agreements and concerted
practices
in the Benelux
countries) (OJ L 212, 8.8.1984, p. 13)). Recidivism, as
aggravating circumstance, thus justifies an increase of the
basic amount of the fine for Groupe Danone/Brasseries
Kronenbourg SA by 50 %. No other aggravating circum-
stance has been retained.

flat-glass

sector

3. Attenuating circumstances

(17) No attenuating circumstance has been retained.

Duration of the infringement

(14)

Since the agreement has not been implemented, there is
no reason to increase the basic amount of the fine which
is imposed on the companies concerned.

4. Final amount of the fine

(18) Consequently, the final amount of the fine imposed on

each undertaking is the following:

therefore
(15) A basic
withheld
Danone/Brasseries
Kronenbourg SA and Heineken NV/Heineken France SA.

amount of EUR 1 000 000 was

Groupe

both

for

— Groupe Danone and Brasseries Kronenbourg SA are
sum of

severally

liable

the

for

jointly
EUR 1 500 000,

and

2. Aggravating circumstances

(16)

In 1984, Groupe Danone (then BSN) was already fined
for market-sharing agreements aimed at maintaining the
status quo and at establishing an equilibrium within the

— Heineken NV and Heineken France SA are jointly and
severally liable for the sum of EUR 1 000 000.