Summary of Commission Decision of 18 April 2007 relating to a proceeding under Article 81 of the Treaty establishing the European Community (Case COMP/B/37.766 — Dutch beer market) (notified under document number C(2007) 1697)
Date: 2007-04-18
Institutions: European Commission
Subjects: Netherlands, beer, fine, infringement of EU law, price agreement, restriction on competition, unlawful agreement

20.5.2008

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Official Journal of the European Union

C 122/1

II

(Information)

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

COMMISSION

Summary of Commission Decision

of 18 April 2007

relating to a proceeding under Article 81 of the Treaty establishing the European Community

(Case COMP/B/37.766 — Dutch beer market)

(notified under document number C(2007) 1697)

(Only the Dutch text is authentic)

(2008/C 122/01)

SUMMARY OF THE INFRINGEMENT

THE DUTCH BEER MARKET

1. This Decision was addressed to InBev NV, InBev Nederland
NV, Heineken NV, Heineken Nederland BV, Koninklijke
Grolsch NV and Bavaria NV.

2. The above six legal entities belonging to four brewery
undertakings have participated in a single and continuous
infringement of Article 81 of
the EC Treaty between
27 February 1996 and 3 November 1999 on the market
for beer in the Netherlands.

5. The market value of the beer sold by the four brewery
undertakings on the Dutch market in the period covered by
the decision was approximately EUR one billion per year.
The total market share of the cartel members in the Dutch
beer market was above 90 %.

FUNCTIONING OF THE CARTEL

3. The infringement consisted in a complex of agreements
and/or concerted practices the object of which was to
restrict competition within the common market, in particu-
lar by:

(i) coordinating prices and price increases of beer in the
Netherlands, both in the on-trade and the off-trade
segment, including with regard to private label beer;

6. The Central Brewery Office (Centraal Brouwerij Kantoor), of
which the four brewery undertakings are the most impor-
tant members, has numerous well-structured, numbered
meetings of
is general assembly and various working
parties, for which invitations and minutes were sent. In
parallel to these official meetings, there have been for years
unofficial meetings during which the breweries had
anticompetitive discussions.

(ii) occasionally coordinating other commercial conditions
in the on-trade

customers

offered to individual
segment in the Netherlands;

(iii) occasional

concertation

allocation,
both in the on-trade and the off-trade segment in the
Netherlands.

customer

on

7. The Decision sets the starting date with the meeting of
27 February 1996, the first meeting for which the Commis-
sion has documentary evidence of
the anti-competitive
content of the discussions. The end of the cartel is set at
3 November 1999, which is the date of the last proven
meeting.

4. On-trade refers to places where consumption is on the
premises, e.g. restaurants and cafés. Off-trade refers to
consumption off the premises, e.g. sales through supermar-
kets.

8. The infringements committed by the addressees are consid-
ered as ‘very serious’ by their nature, as they had the object
of
thereby restricting competition and
affecting trade between Member States.

fixing prices,

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PROCEDURE

9. In July 1999, the Commission carried out inspections at
the headquarters of Interbrew (a predecessor of InBev) in
Leuven (Belgium) following a complaint about a possible
abuse of a dominant position. The inspection led to the
opening of a different case regarding a cartel on the Belgian
beer market between Interbrew and the second player
Alken-Maes involving also the confederation of Belgian
brewers.
second investigation,
Interbrew came forward with an application under the
1996 leniency notice regarding a second cartel on the
Belgian market (concerning private label beer and involving
more brewers) as well as regarding anticompetitive practices
in France, Luxembourg, Italy and the Netherlands.

course of

In the

this

10. As a result of Interbrew's statement,

investigations were

carried out in the Netherlands on 22 and 23 March 2000.

11. On 30 August 2005, the Commission initiated proceedings
in the present case, and adopted a Statement of Objections
which was notified to the addressees of the present Deci-
sion.

12. Interbrew has

through its 2004 merger with AmBev
become InBev, and Interbrew Nederland has in 2006 been
renamed InBev Nederland.

Netherlands of EUR [between 450 and 480] million in
1998,
is placed in the first category. Grolsch, with beer
sales in the Netherlands of EUR [between 150 and 180]
in the
million in 1998 and InBev, with beer
Netherlands of EUR [between 150 and 180] million in
1998, are placed in a second category. Bavaria, with beer
sales in the Netherlands of EUR [between 100 and 130]
million in 1998, is placed in a third category.

sales

18. Within the category of very serious infringement, the scale
of likely fines also makes it possible to set the fines at a
level which ensures that
they have sufficient deterrent
effect, taking into account the size of each undertaking.
In 2006,
InBev was
EUR 13 308 million, that of Heineken EUR 11 829 million,
that of Grolsch EUR 317 million and that of Bavaria
EUR 401 million. Accordingly, the Commission considers it
appropriate to multiply the fine for InBev and Heineken
by 2,5.

the world-wide

turnover of

19. The starting amount of the fines is generally increased by
infringement, and further
10 % for each full year of
increased by 5 % for any remaining period of 6 months or
more but less than a year. All addressees of the Decision
are liable for an infringement of 3 years and 8 months.
This leads to an increase in the starting amount of the fine
by 35 %.

13. As none of

the parties requested an oral hearing, no

hearing took place.

Aggravating and attenuating circumstances

14. Except for InBev, the addressees of the Statement of Objec-
tions objected to the facts constituting the infringement
presented therein. The parties' arguments are examined and
discussed in the Decision.

20. The Decision concludes that in the present case there are
neither aggravating nor attenuating circumstances for any
of the undertakings concerned.

Application of the 10 % turnover limit

FINES

Basic amount

15. In view of the nature of the infringement and the fact that
it affected the entire territory of the Netherlands, the under-
takings to which this Decision is addressed have committed
a very serious infringement of Article 81 of the Treaty.

16. Within the category of very serious infringements, the scale
of likely fines makes it possible to apply differential treat-
ment to undertakings in order to take account of the effec-
tive economic capacity of
the offenders, respectively, to
cause significant damage to competition. This is appropriate
where, as in this case, there are considerable disparities
between the respective market shares of the undertakings
participating in the infringement.

17. It is appropriate in this case to use the beer sales in the
Netherlands of the undertakings participating in the infrin-
gement as a basis for comparison to determine their
respective weight. The comparison is based on sales in
the Netherlands of beer in the last full calendar year of the
(1998). Heineken, with beer sales in the
infringement

21. Article 23(2) of Regulation (EC) No 1/2003 provides that
‘For each undertaking and association of undertakings parti-
cipating in the infringement, the fine shall not exceed 10 %
of its total turnover in the preceding business year’. Taking
into account
this
requirement leads to a limitation of the fine to be imposed
on Grolsch.

the undertakings'

in 2006,

turnover

Application of the 1996 Leniency Notice

22. InBev submitted an application under

the Commission
Notice on the non-imposition or reduction of
fines in
cartel cases. It co-operated with the Commission at different
stages of the investigation with a view to receiving the
favorable treatment provided for in the the 1996 Commis-
sion Notice on the non-imposition or reduction of fines (1).

23. InBev claims that it fulfils the conditions for benefiting
from a reduction of at least 75 % of the fine or even from
exemption from a fine under Section B of the 1996 Notice.

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

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24. InBev informed the Commission of the existence of an
infringement, even before the Commission launched an
investigation and before it had any other information about
the infringement. InBev was also the first undertaking to
provide documentation to the Commission that was
crucially important to confirming the existence of a cartel.
To the Commission's knowledge, InBev ended its participa-
tion in the illegal activities before the Commission became
InBev also supplied the
aware of
Commission with all the evidence about the cartel which it
had in its possession. In addition, InBev continued to coop-
erate fully throughout the investigation and did not funda-
mentally contest the accusations levelled against the partici-
pating undertakings in the statement of objections. Finally,
there is no indication that InBev forced any other under-
taking to take part in the infringement, or took the initia-
tive or played a leading role in the illegal activity.

infringement.

the

25. The Commission therefore takes the view that InBev fully
complied with the conditions in Section B of the 1996
Notice.

26. The Decision took into account all of these elements when
the fine that would
granting a 100 % reduction of
otherwise have been imposed on InBev NV and InBev
Nederland NV.

DECISION

27. The following undertakings participated, during the period
from 27 February 1996 to 3 November 1999, in a single

and continuous infringement of Article 81 of the Treaty, by
entering into a complex of agreements and/or concerted
practices the object of which was to restrict competition
in particular by (i) coordi-
within the common market,
nating prices and price increases of beer in the Netherlands,
both in the on-trade and the off-trade segment, including
with regard to private label beer; (ii) occasionally coordi-
nating other commercial conditions offered to individual
in the Netherlands;
customers in the on-trade segment
(iii) occasional concertation on customer allocation, both in
the on-trade and the off-trade segment in the Netherlands:

(a) InBev: InBev NV and InBev Nederland NV;

(b) Heineken: Heineken NV and Heineken Nederland BV;

(c) Grolsch: Koninklijke Grolsch NV;

(d) Bavaria: Bavaria NV.

28. For the infringements referred to above, the following fines

were imposed:

(a) Heineken NV and Heineken Nederland BV, jointly and

severally: EUR 219 275 000;

(b) Koninklijke Grolsch NV: EUR 31 658 000;

(c) Bavaria NV: EUR 22 850 000.

29. The undertakings listed above had to immediately bring to
an end the infringements, insofar as they had not already
done so. They had to refrain from any act or conduct as
the infringement found in this case, and from any act or
conduct having the same or a similar object or effect.