Final report of the Hearing Officer in case COMP/39.116 — Coca-Cola (pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)   (Text with EEA relevance)
Date: 2005-05-26
Institutions: European Commission
Subjects: Iceland, Norway, administrative procedure, audit, beverage industry, bottling, competition law, distributive trades, exclusive distribution agreement, report

29.9.2005

EN

Official Journal of the European Union

C 239/19

Final report of the Hearing Officer in case COMP/39.116 — Coca-Cola

(pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of
reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2005/C 239/09)

(Text with EEA relevance)

The draft decision concerns the supply of carbonated soft
drinks in the EC, Iceland and Norway through the distribution
channels for consumption at home and consumption on the
premises. It is addressed to The Coca-Cola Company (‘TCCC’)
and its three anchor bottlers, Bottling Holdings (Luxembourg)
sarl, Coca-Cola Erfrischungsgetränke AG and Coca-Cola
Hellenic Bottling Company SA (hereinafter ‘the Parties’).

The Commission received complaints in 1996, 1999 and 2001
under Article 3 of Council Regulation No 17 of 6 February
1962, which alleged an abuse of a dominant position by TCCC
and its bottlers. The Commission undertook inspections
pursuant to Article 14(3) of Regulation No 17 on the Parties'
premises located in Austria, Belgium, Denmark, Germany and
the United Kingdom in 1999 and 2000.

On 29 September 2004 the Commission opened proceedings
with a view to adopting a decision under Chapter III of Regu-
lation (EC) No 1/2003.

In the preliminary assessment issued on 15 October 2004
pursuant to Article 9(1) of Regulation (EC) No 1/2003, the
Commission raised competition concerns against certain busi-
ness practices of TCCC and its bottlers in the supply of carbo-
nated soft drinks relating to exclusive supply, growth and
target rebates and leveraging of market power between various
product categories.

On 19 October 2004 the Parties submitted commitments to
the Commission in response to its preliminary assessment.

On 26 November 2004 a notice according to Article 27(4) of
Regulation (EC) No 1/2003 was published in the Official Journal
of the European Union, which, summarising the case and the
commitments submitted by the Parties, invited interested third
parties to give their observations on the commitments within
one month following the publication date (‘the market test’) (1).
The notice informed the public of the Commission's perceived

competition concerns, the corresponding remedies, and invited
interested parties to submit comments.
In response to the
notice, the Commission received 33 observations from inter-
ested third parties, of which 19 from on-premise and take-
home operators and 14 from beverage suppliers. The observa-
tions received were overall positive, as they confirmed the
effectiveness of the commitments in addressing the Commis-
sion's concerns. They did not make the Commission reconsider
its concerns as stated in the preliminary assessment and did not
give rise to identification of new concerns.

On 21 January 2005 the Commission informed the Parties of
the observations received from the interested third parties
during the market
test. On 25 February 2005 the Parties
submitted an amended commitment proposal.

The Commission has now come to the conclusion that, in view
of the undertakings proposed by the Parties in response to the
preliminary assessment and as later amended to take account
of the relevant observations by interested third parties and
without prejudice to Article 9(2) of Regulation (EC) No
1/2003, there are no longer grounds for action.

No queries were raised before the Hearing Officer by the
Parties or other companies as to the market test. No requests
for additional information were made. The Parties confirmed
that the Commission Services provided them with sufficient
facts to develop commitments that address the matters raised
in the preliminary assessment.

In the light of the above, the case does not call for any particu-
lar comments as regards the right to be heard.

Brussels, 26 May 2005.

Serge DURANDE

(1) OJ C 289, 26.11.2004, p. 10.