CELEX: 62007TJ0235
Language: en
Date: 2011-06-16
Title: Judgment of the General Court (Sixth Chamber, extended composition) of 16 June 2011.#Bavaria NV v European Commission.#Competition - Agreements, decisions and concerted practices - Netherlands beer market - Decision finding an infringement of Article 81 EC - Proof of the infringement - Access to the file - Fines - Principle of equal treatment - Reasonable period.#Case T-235/07.

Case T-235/07
      Bavaria NV
      v
      European Commission
      (Competition – Agreements, decisions and concerted practices – Netherlands beer market – Decision finding an infringement of Article 81 EC – Evidence of the infringement – Access to the file – Fines – Principle of equal treatment – Reasonable time)
      Summary of the Judgment
      1.      Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention
            as to the conduct to be adopted on the market
      (Art. 81(1) EC)
      2.      Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Contact incompatible with the
            obligation for each undertaking to determine independently its conduct on the market – Exchange of information – Presumption
            – Conditions
      (Art. 81(1) EC)
      3.      Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body
            of evidence
      (Art. 81(1) EC)
      4.      Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Documentary proof
      (Art. 81(1) EC)
      5.      Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters – Applicability
      (Art. 81(1) EC)
      6.      Competition – Administrative procedure – Commission decision finding an infringement – Use of statements submitted in the
            context of the Leniency Notice by other undertakings which have participated in the infringement, as a means of proof – Whether
            permissible – Conditions
      (Arts 81 EC and 82 EC)
      7.      Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement
            borne by the Commission – Limits
      (Art. 81(1) EC)
      8.      Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria
            for assessment – Anti-competitive purpose – Sufficient finding
      (Art. 81(1) EC)
      9.      Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement
            and its duration on the Commission – Probative value of evidence provided voluntarily against an undertaking by the main participants
            in an unlawful agreement in order to benefit from the application of the Leniency Notice 
      (Art. 81(1) EC; Commission Notice 96/C 207/04)
      10.    Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement
            and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Whether permissible
      (Art. 81(1) EC)
      11.    Competition – Administrative procedure – Commission decision finding an infringement in respect of an undertaking, adopted
            after another Commission decision referring to that undertaking only in the context of the statement of the facts but not
            as an addressee and not penalising it – Breach of the ne bis in idem principle – None
      (Art. 81(1) EC)
      12.    Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement
            and its duration on the Commission – Extent of the burden of proof
      (Art. 81(1) EC)
      13.    Competition – Agreements, decisions and concerted practices – Proof – Undertaking’s response to the request for information
            from the Commission – Probative value – Assessment
      (Council Regulations No 17, Art. 11, and No 1/2003, Art. 18)
      14.    Competition – Administrative procedure – Commission decision finding an infringement – Duty of the Commission to examine carefully
            and impartially all the relevant aspects of the individual case
      15.    Competition – Administrative procedure – Commission’s premature display of its belief as to the existence of an infringement
      16.    Competition – Administrative procedure – Observance of  the rights of the defence – Access to the file – Scope – Refusal to
            communicate a document – Consequences – Need to draw a distinction with regard to the burden of proof on the undertaking concerned
            between incriminating documents and exculpatory documents 
      (Council Regulation No 1/2003, Art. 27(2))
      17.    Competition – Administrative procedure – Access to the file – Documents not contained in the investigation file and not retained
            by the Commission to be used as evidence – Documents capable of assisting the defence of the parties
      (Arts 81(1) EC and 82 EC; EEA Agreement, Arts 53, 54 and 57; Council Regulation No 139/2004; Commission Notice 2005/C 325/07,
            Section 27)
      18.    Competition – Fines – Amount – Determination – Commission’s margin of discretion – Limits – Compliance with the Guidelines
            adopted by the Commission – Judicial review
      (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)
      19.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Actual impact on the market taken
            into account – Scope
      (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)
      20.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Discretion of the Commission
      (Council Regulations Nos 17 and 1/2003; Commission Notice 98/C 9/03)
      21.    Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Conditions
      (Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)
      22.    Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Turnover
            taken into consideration
      (Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)
      23.    Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Criteria for
            assessment – Infringement – Consequences
      (Council Regulation No 1/2003)
      24.    Competition – Fines – Amount – Determination – Possibility to raise the level of fines in order to increase their deterrent
            effect
      (Art. 81 EC)
      25.    Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Infringement
            – Consequences – Equitable reduction in the amount of the fine
      (Art. 81 EC)
      1.      In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question
         should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the
         meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle
         of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation. The
         existence of an agreement within the meaning of Article 81 EC is not called into question either by the likelihood that the
         consensus between the undertakings did not extend to the practical arrangements for implementing the price increase or the
         fact that that increase never actually took place on the market.
      
      (see paras 34-35, 175)
      2.      The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the
         stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical
         cooperation between them. In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators
         of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such
         a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market,
         where the object or effect of those contacts is to restrict competition.
      
      Subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings
         taking part in the concerted action 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 will be all the more true where the undertakings
         concert together on a regular basis over a long period.
      
      (see paras 36-37, 178)
      3.      As regards establishing an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found
         and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement.
         Thus, the Commission must produce sufficiently precise and consistent evidence to establish the existence of the infringement.
      
      However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy
         those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the
         institution, viewed as a whole, meets that requirement.
      
      As anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly
         attesting to contacts between the operators concerned. The fragmentary and sporadic items of evidence which may be available
         to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances
         to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of
         coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence
         of an infringement of the competition rules.
      
      (see paras 38-41)
      4.      Where the Commission has relied on documentary evidence in support of its finding of the existence of an anti-competitive
         agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward
         a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision
         to establish the existence of the infringement is insufficient.
      
      (see para. 42)
      5.      As regards the scope of review by the Court, where the Court is faced with an application for the annulment of a decision
         applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the
         conditions for the application of Article 81(1) EC are met.
      
      Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance
         with the principle of the presumption of innocence, which, as a general principle of European Union (‘EU’) law, applies in
         particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result
         in the imposition of fines or periodic penalty payments.
      
      (see paras 43-44)
      6.      No provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements
         made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC
         and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising
         the proper application of those provisions which is entrusted to it by the EC Treaty.
      
      Admittedly, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested
         by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed
         by the latter unless it is supported by other evidence. Such a statement cannot therefore be sufficient, in itself, to establish
         the existence of the infringement, but must be corroborated by other evidence. Nevertheless, the degree of corroboration required
         is lesser, in terms both of precision and of depth, than would be the case if that statement were not particularly credible.
      
      Thus, it must be concluded that, if a body of consistent evidence corroborated the existence and certain specific aspects
         of the practices mentioned in that statement, that statement might be sufficient in itself, in such a case, to constitute
         evidence of other aspects of the Commission’s decision.
      
      Moreover, provided that a document does not manifestly contradict the statement as to the existence or the essential content
         of the contested practices, the fact that it provides evidence of significant elements of the practices which it described
         is sufficient to endow it with corroborative value within the body of inculpatory evidence.
      
      (see paras 60, 79-81)
      7.      The Commission often has to prove the existence of an infringement under conditions which are hardly conducive to that task,
         in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings
         covered by the investigation have not actively cooperated with the Commission.
      
      Whilst it is necessarily incumbent upon the Commission to establish that an illegal market-sharing agreement was concluded,
         it would be excessive also to require it to produce evidence of the specific mechanism by which that object was attained.
         Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it was entitled to base
         its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances
         in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings
         are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the
         evidence relied on against them by the Commission.
      
      (see para. 69)
      8.      It follows from the text of Article 81 EC that agreements and concerted practices between undertakings are prohibited, regardless
         of their effect on the market, when they have an anti-competitive object. Thus, because the Commission has established the
         existence of agreements and concerted practices which have an anti-competitive object, this finding cannot be refuted by information
         relating to the non-application of cartel arrangements or the absence of any effect on the market.
      
      (see paras 70-71)
      9.      Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is generally
         called for, considering the possibility that they might tend to play down the importance of their contribution to the infringement
         and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain
         a reduction of the fine does not necessarily create an incentive for the other participants in the offending cartel to submit
         distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness
         of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency
         Notice.
      
      (see para. 78)
      10.    Given such a complex factual situation, the dual characterisation of anticompetitive conduct as a ‘complex of agreements and/or
         concerted practices’, in so far as that conduct involved at one and the same time elements to be characterised as ‘agreements’
         and elements to be characterised as ‘concerted practices’, must be understood not as requiring, simultaneously and cumulatively,
         proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice,
         but rather as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements
         and others as concerted practices for the purposes of Article 81 EC, which lays down no specific category for a complex infringement
         of this type.
      
       (see para. 183)
      11.    The ne bis in idem principle, which constitutes a general principle of EU law, whose observance the Courts ensure, prohibits the same person
         from being penalised more than once for the same unlawful conduct in order to protect one and the same legal interest. The
         application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender
         and the unity of the legal interest protected.
      
      When the Commission penalises an undertaking for anticompetitive conduct, that principle is in no way breached by the fact
         that the conduct referred to has already been the subject of an earlier decision of the Commission, since the undertaking
         was not penalised by that earlier decision, nor was it among the addressees of that decision nor the addressees of the statement
         of objections adopted in the procedure leading to the adoption of that decision, and that its participation in the unlawful
         conduct was only referred to in the context of the statement of fact, without being the subject of any legal assessment whatsoever
         by the Commission. 
      
      (see paras 186-188)
      12.    The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of
         which is borne principally by the Commission. In this regard, according to the case-law, if there is no evidence directly
         establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate
         in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.
      
      (see para. 198)
      13.    The probative value of a statement given on behalf of the undertaking in reply to the request for information from the Commission
         under Article 11 of Regulation No 17 and Article 18 of Regulation No 1/2003 carries more weight than that of an employee of
         the undertaking, whatever his individual experience or opinion.
      
      (see para. 217)
      14.    The rights guaranteed by the EU legal order in administrative procedures include, in particular, the duty of the competent
         institution to examine carefully and impartially all the relevant aspects of the individual case.
      
      (see para. 222)
      15.    The existence of an infringement must be assessed having regard only to the evidence gathered by the Commission. Where the
         substance of an infringement is actually established following the administrative procedure, evidence of a premature manifestation
         by the Commission, during that procedure, of its conviction that the infringement exists is not of such a kind as to deprive
         the actual evidence of the infringement itself of its reality.
      
      (see para. 226)
      16.    The right of access to the file is a corollary of the principle of respect for the rights of the defence and means that the
         Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file
         that may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the
         business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.
      
      As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence
         only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning
         the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is
         thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been
         different if that uncommunicated document had to be disallowed as evidence.
      
      By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its
         non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s
         decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its
         defence, by showing, in particular, that it would have been able to invoke evidence which was not consistent with the Commission’s
         assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its
         assessments in the decision.
      
      (see paras 236-239)
      17.    The statement of objections is a document whose aim is to delimit the scope of the procedure initiated against an undertaking
         and to ensure that the rights of the defence may be exercised effectively. It is from that aspect that the statement of objections
         is subject to procedural safeguards, pursuant to the principle of respect for the rights of the defence, one of which is the
         right of access to documents in the Commission’s file.
      
      The replies to the statement of objections are not part of the investigation file proper. Since they are documents which are
         not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose
         those replies to other parties involved only if it transpires that they contain new incriminating or exculpatory evidence.
         Similarly, under paragraph 27 of the Commission notice on the rules for access to the Commission file in cases pursuant to
         Articles 81 EC and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Regulation No 139/2004, as a general rule, the parties
         do not have access to the replies to the statement of objections of the other parties involved in the investigation. A party
         is granted access to such documents only where they may constitute new evidence, whether of an incriminating or of an exculpatory
         nature, pertaining to the allegations concerning that party in the Commission’s statement of objections.
      
      In this respect, concerning, first, new incriminating evidence, it is settled case-law that, if the Commission wishes to rely
         on evidence from a reply to a statement of objections in order to prove the existence of an infringement, the other undertakings
         involved in that proceeding must be placed in a position in which they can express their views on such new evidence.
      
      As regards new exculpatory evidence, the Commission is not obliged to make it available of its own initiative. If, during
         the administrative procedure, the Commission has rejected an applicant’s request for access to documents which are not in
         the investigation file, an infringement of the rights of the defence may be found only if it is proved that the outcome of
         the administrative procedure might have been different if the applicant had had access to the documents in question during
         that procedure.
      
      (see paras 241-246, 249)
      18.    The Commission enjoys a broad discretion as regards the method for calculating fines. That method, 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,
         displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Regulation
         No 1/2003.
      
      In addition, in areas such as determining the amount of a fine under Regulation No 1/2003, where the Commission has such a
         discretion, review of the legality of its assessments is limited to determining the absence of manifest error of assessment.
         The discretion enjoyed by the Commission and the limits which it has imposed in that regard have no bearing, however, on the
         exercise by the EU judicature of its unlimited jurisdiction, which empowers it to annul, reduce or increase the fine imposed
         by the Commission.
      
      (see paras 265-267)
      19.    The gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case,
         its context and the deterrent effect of fines, in respect of which the Commission has a margin of discretion.
      
      In particular, according to the first paragraph of Section 1.A of 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, in assessing the gravity of the infringement, account
         must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic
         market. In the exercise of its unlimited jurisdiction, the Court must nevertheless consider whether the amount of the fine
         imposed is proportionate to the gravity of the infringement and must weigh the seriousness of the infringement with the circumstances
         invoked by the undertaking.
      
      Within the meaning of the third indent of the second paragraph of Section 1.A of those guidelines, very serious infringements
         are ‘generally horizontal restrictions such as price cartels and market‑sharing quotas’. Agreements of this kind constitute
         one of the most serious forms of damage to competition, in that their aim is quite simply to eliminate competition between
         the undertakings which implement them, and therefore run counter to the fundamental objectives of the EU. Horizontal price
         or market sharing agreements may be classified as very serious infringements solely on account of their nature, without the
         Commission being required to demonstrate an actual impact of the infringement on the market.
      
      Whilst the existence of an actual impact of the infringement on the market is a factor to be taken into account in assessing
         the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of
         the geographic market. Likewise, it is apparent from the first paragraph of Section 1.A of those guidelines that that impact
         is to be taken into account only where this can be measured.
      
       (see paras 270-272, 275-276, 280-281)
      20.    Within the framework of Regulation No 17 and of Regulation No 1/2003, the Commission has a margin of discretion when fixing
         the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules
         and that it may at any time adjust the level of fines to the needs of that policy.
      
      The Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition
         matters.
      
      The decisions in other cases can give only an indication for the purpose of determining whether there is discrimination, since
         the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same.
      
      The Commission assesses the gravity of infringements by reference to numerous factors, which are not based on a binding or
         exhaustive list of the criteria which must be applied and it is not, moreover, bound to apply a precise mathematical formula,
         either for the total amount of the fine or where it is broken down into different elements. In these circumstances, a direct
         comparison of the fines imposed on the addressees of the two decisions concerning distinct infringements is likely to distort
         the specific functions performed by the different stages in the calculation of a fine. The final amounts of the fines reflect
         the specific circumstances of each cartel.
      
      (see paras 288, 290, 293-294)
      21.    Under 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, where there are infringements involving a number of undertakings, the Commission may weight the starting
         amounts to take account of the specific weight of each undertaking by dividing the members of the cartel into groups particularly
         where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. These
         guidelines further state that the principle of equal punishment for the same conduct may, if the circumstances so warrant,
         lead to different fines being imposed on the undertakings concerned without that differentiation being governed by any arithmetic
         calculation.
      
      In determining the gravity of the infringement, the Commission is not required to ensure, where fines are imposed on a number
         of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for
         the undertakings concerned reflect any distinction between them in terms of their overall turnover. However, it may divide
         them into groups.
      
      A division of the undertakings concerned by categories must, however, comply with the principle of equal treatment, according
         to which it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment
         is objectively justified. Moreover, the amount of the fines must, at least, be proportionate in relation to the factors that
         entered into the assessment of the seriousness of the infringement.
      
      (see paras 298-300)
      22.    Despite its approximate nature, turnover is regarded as an adequate criterion, in competition law, for assessing the size
         and the economic power of the undertakings concerned.
      
      With regard to the use of turnover including excise duties for the calculation of the individual basic amounts, it should
         be emphasised that, in so far as that calculation involved the relative weighting of the other participants in the cartel
         on that market, the non-inclusion of taxes or excise duties do not alter the Commission’s final conclusion. Only if the Commission
         had calculated the individual basic amounts of the other parties involved on the basis of turnover not including excise duties
         could there be a breach of the principle of equal treatment.
      
      (see paras 304, 306)
      23.    Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy
         constitutes a general principle of EU law whose observance the EU judicature ensures.
      
      For the purposes of the application of that principle, a distinction must be drawn between the two stages of the administrative
         procedure, namely the investigation stage preceding the statement of objections and the stage corresponding to the remainder
         of the administrative procedure. The first stage, covering the period up to notification of the statement of objections, begins
         on the date on which the Commission, exercising the powers conferred on it by the legislature, takes measures which imply
         an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to
         follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision.
         It must enable the Commission to reach a final decision on the infringement concerned.
      
      The length of the first phase of the procedure of 65 months must be regarded, in the absence of further explanation or information
         from the Commission regarding the measures of inquiry undertaken during that period, as excessive. However, a finding that
         there has been a breach of the reasonable time principle may result in the annulment of a decision establishing an infringement
         only where the length of the proceedings affected their outcome.
      
      (see paras 316-318, 320, 322, 325)
      24.    The fact that the Commission has, in the past, imposed fines of a certain level for certain types of infringement does not
         mean that it is estopped from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary
         to ensure the implementation of competition policy. On the contrary, the proper application of the competition rules requires
         that the Commission may at any time adjust the level of fines to the needs of that policy.
      
      (see para. 335)
      25.    A procedural irregularity, even though it is not capable of resulting in the annulment of a decision adopted by the Commission
         in respect of an undertaking for an infringement of the competition rules, may justify a reduction of the fine. Failure to
         adjudicate within a reasonable time can justify the Commission’s decision to reduce, in equity, the amount of a fine, since
         the possibility of granting such a reduction falls within the scope of the Commission’s powers.
      
      (see paras 337-338)
JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)
      16 June 2011 (*)
      
      (Competition – Agreements, decisions and concerted practices – Dutch beer market – Decision finding an infringement of Article 81 EC – Evidence of the infringement – Access to the file – Fines – Principle of equal treatment – Reasonable time)
      In Case T‑235/07,
      Bavaria NV, established in Lieshout (Netherlands), represented initially by O. Brouwer, D. Mes and A. Stoffer, and subsequently by O. Brouwer,
         A. Stoffer and P. Schepens, lawyers,
      
      applicant,
      v
      European Commission, represented initially by A. Bouquet, S. Noë and A. Nijenhuis, and subsequently by A. Bouquet and S. Noë, acting as Agents,
         and by M. Slotboom, lawyer,
      
      defendant,
      APPLICATION for partial annulment of Commission Decision C (2007) 1697 of 18 April 2007 relating to a proceeding under Article
         81 [EC] (Case COMP/B/37.766 – Dutch beer market) and, in the alternative, for reduction of the fine imposed on the applicant,
      
      THE GENERAL COURT (Sixth Chamber, Extended Composition),
      composed of V. Vadapalas (Rapporteur), acting for the President, A. Dittrich and L. Truchot, Judges,
      Registrar: J. Plingers, Administrator,
      having regard to the written procedure and further to the hearing on 24 March 2010,
      gives the following
      Judgment
       Facts
      1        The applicant, Bavaria NV, is a company whose business is to produce and market beer and soft drinks.
      
      2        It is one of the four main operators on the Dutch beer market. The other leading brewers on that market are, first, the Heineken
         group (‘Heineken’), which is managed by Heineken NV and whose production is managed by the subsidiary Heineken Nederland BV,
         second, the InBev group (‘InBev’), which, prior to 2004, was known under the name Interbrew, which is managed by InBev NV
         and whose production is the responsibility of the subsidiary InBev Nederland NV, and, third, the Grolsch group (‘Grolsch’),
         which is managed by Koninklijke Grolsch NV.
      
      3        The applicant and the other three leading brewers on that market sell their beer to end-customers, using two distribution
         channels in particular. A distinction should thus be drawn between the on-trade establishment channel, that is to say, hotels,
         restaurants and cafes, where drinks are consumed on the premises, and the off‑trade channel of supermarkets and off-licences,
         where beer is sold for home consumption. This latter sector also includes the private label beer segment. Of the four brewers
         concerned, only InBev and Bavaria are active in that segment.
      
      4        The four brewers are members of the Centraal Brouwerij Kantoor (Central Brewery Office (CBK)). This is an umbrella organisation
         which, according to its statutes, represents the interests of its members and is composed of a general assembly and various
         working parties, such as the Working Party for on-trade matters and the Working Party on finance, which has become its steering
         committee. For meetings which take place within the CBK, its secretariat sends the participating members invitations and sequentially
         numbered official minutes. 
      
       Administrative procedure
      5        By letters of 28 January 2000 and of 3, 25 and 29 February 2000, InBev made a series of statements providing information on
         restrictive business practices on the Dutch beer market. Those statements were made during an investigation conducted by the
         Commission of the European Communities, in particular in 1999, into cartel activities and a possible abuse of a dominant position
         on the Belgian beer market. In conjunction with these statements, InBev made a leniency application in accordance with the
         Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’).
      
      6        On 22 and 23 March 2000, following the statements by InBev, the Commission carried out inspections at the premises of the
         applicant and of the other undertakings concerned. In addition, other requests for further information were sent to the applicant
         between 2001 and 2005. 
      
      7        On 30 August 2005, the Commission sent a statement of objections to the applicant and to the other undertakings concerned.
         By letter of 24 November 2005, the applicant submitted its written observations on that statement. None of the parties concerned
         requested an oral hearing.
      
      8        By letters of 7 March and 8 May 2006, additional documents were brought to the applicant’s attention by the Commission. These
         included requests for information sent to InBev and the replies to those requests, and an internal memo from Heineken.
      
      9        On 18 April 2007, the Commission adopted Decision C (2007) 1697 relating to a proceeding under Article 81 [EC] (Case COMP/B/37.766
         – Dutch beer market) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 20 May 2008 (OJ 2008 C 122, p. 1), which was notified to the applicant by letter of 24 April 2007.
      
       The contested decision
       The infringement at issue
      10      Article 1 of the contested decision states that the applicant and InBev NV, InBev Nederland, Heineken NV, Heineken Nederland
         and Koninklijke Grolsch participated, during the period from 27 February 1996 to 3 November 1999, in a single and continuous
         infringement of Article 81(1) EC by entering into a complex of agreements and/or concerted practices the object of which was
         to restrict competition within the common market.
      
      11      The infringement consisted, first, in coordinating prices and price increases for beer in the Netherlands, in both the on-trade
         and the off-trade sector, including with regard to private label beer, and, second, in occasionally coordinating other commercial
         conditions offered to individual customers in the on-trade sector in the Netherlands, such as loans to businesses, and, third,
         in occasionally coordinating customer allocation, in both the on-trade and the off-trade sector in the Netherlands (Article
         1 of and recitals 257 and 258 to the contested decision). 
      
      12      According to the contested decision, the anti-competitive conduct of the brewers took place during a cycle of unofficial multilateral
         meetings which regularly brought together the four main operators on the Dutch beer market and at additional bilateral meetings
         involving different combinations of the same brewers. According to the contested decision, these meetings took place secretly,
         intentionally, because the participants knew that they were not permitted (recitals 257 to 260 to the contested decision).
      
      13      Thus, firstly, a series of multilateral meetings known as ‘Catherijne overleg’ (Catherijne consultation) or ‘agendacommissie’
         (Working Group on agenda) were held between 27 February 1996 and 3 November 1999. The contested decision finds that the main
         object of these meetings, which focused on the on-trade sector, but could also deal with the off-trade sector, was to coordinate
         prices and price increases for beer, to discuss limiting the amount of discounts and customer allocation and to consult on
         certain other commercial conditions. Prices of private label beer were also discussed in these meetings (recitals 85, 90,
         98, 115 to 127 and 247 to 252 to the contested decision). 
      
      14      Secondly, as far as bilateral contacts between the brewers are concerned, the contested decision states that on 12 May 1997
         InBev and the applicant met and discussed the price increase for private label beer (recital 104 to the contested decision).
         Furthermore, according to the Commission, Heineken and the applicant met in 1998 to discuss restrictions relating to points
         of sale in the on-trade sector (recital 189 to the contested decision). The Commission states that bilateral contacts also
         took place in July 1999 between Heineken and Grolsch on the subject of compensation granted to customers in the off-trade
         sector who made temporary price reductions (recitals 212 and 213 to the contested decision).
      
      15      Lastly, according to the contested decision, bilateral contacts and exchanges of information took place between InBev and
         the applicant in 1997 consisting in general discussions on beer prices and discussions dealing more with private labels. Bilateral
         contacts, in the form of exchanges of information, on the subject of private labels also involved the Belgian brewers in June
         and July 1998 (recitals 105, 222 to 229 and 232 to 236 to the contested decision).
      
       The fine imposed on the applicant
      16      Article 3(c) of the contested decision imposes on the applicant a fine of EUR 22 850 000.
      
      17      In order to calculate the amount of that fine, the Commission applied Article 23(2) of Council Regulation (EC) No 1/2003 of
         16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1,
         p. 1) and the methodology 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) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’) (recitals 436 and 442 to the contested decision). In accordance
         with that methodology, the fine imposed on the applicant was determined according to the gravity and duration of the infringement
         (recital 437 to the contested decision).
      
      18      In particular, the infringement was categorised as ‘very serious’ in so far as it essentially consisted in regularly coordinating
         prices, price increases, other commercial conditions and customer allocation (recital 440 to the contested decision). The
         Commission also took account of the secret and intentional character of the anti‑competitive conduct and the fact that the
         entire territory of the Netherlands and the entire beer market, both the on-trade sector and the off‑trade sector, were affected
         by the infringement (recitals 453 and 455 to the contested decision). In addition, the Commission stated that the actual effect
         on the Dutch market of the anti‑competitive conduct was not taken into account in the present case, as it was impossible to
         measure (recital 452 to the contested decision).
      
      19      Furthermore, the Commission applied differential treatment to the applicant in order to take account of its effective economic
         capacity and its individual weight in the anti-competitive conduct established. To that end, the Commission used the sales
         figures for beer sold by the applicant in the Netherlands in 1998, the last full calendar year of the infringement. On that
         basis, the applicant was placed in the third of three categories, in respect of which the starting amount of the fine was
         EUR 17 million (recitals 462 and 464 to the contested decision). 
      
      20      In addition, as the applicant had taken part in the infringement from 27 February 1996 to 3 November 1999, that is to say,
         for a period of three years and eight months, that starting amount was increased by 35% (recitals 465 and 469 to the contested
         decision). The basic amount was therefore fixed at EUR 22 950 000 (recital 470 to the contested decision).
      
      21      Lastly, the Commission granted a reduction of EUR 100 000 in the amount of the fine since it acknowledged that in the present
         case the length of the administrative procedure had been unreasonable (recitals 495 to 499 to the contested decision).
      
       Procedure and forms of order sought
      22      By application lodged at the Registry of the General Court on 4 July 2007, the applicant brought the present action.
      
      23      By decision of 10 February 2010, the Court referred the case to the Sixth Chamber (Extended Composition) in accordance with
         Article 14(1) and Article 51(1) of its Rules of Procedure.
      
      24      By way of measures of organisation of procedure of 12 February 2010, the Court sent a number of written questions to the Commission,
         which replied within the period allowed.
      
      25      The parties presented oral argument and replied to the questions put by the Court at the hearing on 24 March 2010.
      
      26      Since the Judge-Rapporteur was prevented from sitting after the oral procedure was closed, the case was reassigned to a new
         Judge‑Rapporteur and the present judgment was deliberated by the three judges whose signatures it bears, in accordance with
         Article 32 of the Rules of Procedure.
      
      27      The applicant claims that the Court should: 
      
      –        annul in whole or in part the contested decision, to the extent to which it concerns the applicant;
      –        in the alternative, reduce the fine imposed on the applicant;
      –        order the Commission to pay the costs.
      28      The Commission contends that the Court should:
      
      –        dismiss the application;
      –        order the applicant to pay the costs.
       Law
      29      In support of its action, the applicant relies on six pleas, alleging, first, a breach of the principle of sound administration,
         second, an infringement of Article 81 EC, disregard for the presumption of innocence, and a breach of the principle of legality
         and of the obligation to state reasons, third, an error of law and of fact in the determination of the duration of the infringement,
         fourth, an infringement of Article 23 of Regulation No 1/2003 and of the Guidelines and breaches of the principle of equal
         treatment and the principle of proportionality in determining the amount of the fine, fifth, a breach of the reasonable time
         principle and, sixth, a breach of essential procedural requirements, of the principle of sound administration and of the rights
         of the defence, consisting in the refusal to grant access to the replies of other parties involved to the statement of objections
         and to a document forming part of the file.
      
      30      The Court considers that the second and third pleas, which seek, in essence, to challenge the finding of the infringement,
         should be examined first, then the first and sixth pleas, which allege procedural defects, and lastly, the fourth and fifth
         pleas, which concern, respectively, the determination of the amount of the fine and the length of the administrative procedure.
      
       The second plea, alleging an infringement of Article 81 EC, disregard for the presumption of innocence, and a breach of the
            principle of legality and of the obligation to state reasons
       Arguments of the parties
      31      The applicant essentially claims that the Commission has misinterpreted and misapplied the concepts of ‘agreement’, ‘concerted
         practice’ and ‘single and continuous infringement’ and has erred in law and in the assessment of the facts in respect of the
         finding of the infringement in both the on-trade sector and the off‑trade sector, including the private label beer segment.
      
      32      The Commission contests the applicant’s arguments.
      
       Findings of the Court
      33      Article 81(1) EC provides that the following are to be prohibited as incompatible with the common market: all agreements between
         undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States
         and which have as their object or effect the prevention, restriction or distortion of competition within the common market.
         
      
      34      In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question
         should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256, and Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 199).
      
      35      An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence
         of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged
         are still under negotiation (see, to that effect, HFB and Others v Commission, cited in paragraph 34 above, paragraphs 151 to 157 and 206).
      
      36      The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the
         stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical
         cooperation between them (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 115, and Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 158).
      
      37      In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either
         to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct
         which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect
         of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni, cited in paragraph 36 above, paragraphs 116 and 117).
      
      38      It should be borne in mind that, as regards establishing an infringement of Article 81(1) EC, the Commission must prove the
         infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence
         of the facts constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Commission v Anic Partecipazioni, cited in paragraph 36 above, paragraph 86). 
      
      39      Thus, the Commission must produce sufficiently precise and consistent evidence to establish the existence of the infringement
         (see, to that effect, Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited).
      
      40      However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy
         those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the
         institution, viewed as a whole, meets that requirement (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraphs 179 and 180 and the case-law cited).
      
      41      As anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly
         attesting to contacts between the operators concerned. The fragmentary and sporadic items of evidence which may be available
         to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances
         to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of
         coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence
         of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P
         Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57).
      
      42      Where the Commission has relied on documentary evidence in support of its finding of the existence of an anti-competitive
         agreement or practice, the burden is on the parties who are contesting that finding before the Court not only to put forward
         a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision
         to establish the existence of the infringement is insufficient (JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 187). 
      
      43      As regards the scope of review by the Court, according to settled case‑law, where the Court is faced with an application for
         the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the
         question whether or not the conditions for the application of Article 81(1) EC are met (see Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, paragraph 62 and the case-law cited).
      
      44      Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance
         with the principle of the presumption of innocence, which, as a general principle of European Union (‘EU’) law, applies in
         particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result
         in the imposition of fines or periodic penalty payments (Hüls v Commission, cited in paragraph 36 above, paragraphs 149 and 150, and Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and
         T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 60 and 61).
      
      45      The question whether, in the present case, the Commission has established to the requisite legal standard that the applicant’s
         conduct amounted to an infringement of Article 81(1) EC must be examined in the light of those considerations.
      
      –       The statement by InBev
      46      It should be noted, first of all, that the Commission relies to a large extent (see, in particular, recitals 40 to 62 to the
         contested decision) on the statement made by InBev, in connection with its leniency application, by letters of 28 January
         and 3, 25 and 29 February 2000, supplemented by the annexed statements made by the five managers from InBev (recitals 34 and
         40 to the contested decision; together ‘the statement by InBev’). 
      
      47      According to the contested decision, the statement by InBev indicated the existence of ‘various forms of concerted action
         ... between the brewers on the Dutch beer market’, drawing a distinction between the official meetings of the CBK general
         assembly, the informal meetings of the CBK Working Party on finance and the ‘other meetings’ held in parallel and known as
         the ‘Catherijne consultation’, whose composition varied and for which, InBev states, it has not found any written records.
         The ‘other meetings’ could be subdivided, inter alia, into: ‘(i) meetings of the on-trade managers of the four main brewers
         (Heineken, Interbrew, Grolsch and Bavaria) ...; (ii) joint meetings of the on-trade managers and the off-trade managers (two
         in 1998) and (iii) meetings of the off-trade managers (one in 1999 ...)’ (recitals 41 to 46 to the contested decision).
      
      48      According to the statement by InBev, the Working Party on finance ‘had an official agenda, but was also a forum for discussions
         on fixing prices for the off‑trade sector and the on-trade sector [; t]hose discussions were not recorded at all’ (recital
         43 to the contested decision).
      
      49      According to the same statement, the subjects discussed at the ‘other meetings’ also covered both the on-trade sector and
         the off-trade sector and private label beer (recital 47 to the contested decision).
      
      50      With regard, firstly, to the on-trade sector, two main subjects were discussed: ‘[T]here was an agreement in principle on
         setting maximum discounts by volume for the on-trade sector ... another subject of consultation was the investments made in
         the on-trade [; t]he idea was to maintain the status quo in the sector and to avoid taking customers from other brewers’ (recital
         48 to the contested decision). 
      
      51      One manager from InBev claims that he does not know the precise content of that agreement and another manager describes it
         as ‘a very complex and vague agreement on sliding scales (discounts granted to the on-trade), in which we have never been
         involved’, stating that ‘[t]he consultation consisted in a bimonthly meeting of the on-trade managers, at which they discussed
         known infringements of the “rule” (although this was vague; they talked about market excess)’ (recital 48 to the contested
         decision).
      
      52      With regard, secondly, to the off-trade sector, according to the statement by InBev, the discussions concerned both price
         levels in general and the specific subject of private label beer.
      
      53      As regards price levels in general, one of the managers from InBev states that ‘it was normal for a brewery to increase its
         prices after informing its fellow brewers in advance …; the initiative always came from one of the big breweries, and generally
         from Heineken [; i]n such cases, the other breweries had the necessary time to take a position [; w]hilst the breweries broadly
         aligned their prices with one another, they each had and maintained their own pricing policy’ (recital 51 to the contested
         decision).
      
      54      As regards private label beer, InBev states that the discussions on prices had been conducted between the Dutch operators
         in the segment (Bavaria and Oranjeboom, subsequently acquired by Interbrew) since 1987. It adds that ‘[t]he two parties understood,
         after discussing the matter together, that they would not accept any intrusion in their respective customer bases for private
         labels which resulted in a loss of volume’ (recital 52 to the contested decision).
      
      55      With regard to the involvement of Heineken and of Grolsch in this sector, according to the statement by InBev, ‘[t]he Dutch
         market is characterised by a significant gulf between prices for private label beer (“B brands”) and [other brands (“A brands”);]
         Heineken, which is not present in the private labels segment, has always rejected price increases for A brands as long as
         the price of private label beer did not increase [; i]n this way, it exerted indirect pressure, in particular on private label
         producers such as Bavaria and Interbrew’ (recital 53 to the contested decision).
      
      56      InBev states that prices for private labels were also discussed by the four brewers, in other words also in the presence of
         Grolsch, in the context of the more general topic of the price gaps to be maintained between prices for beer brands. According
         to the statement by InBev, ‘Heineken and Grolsch did not increase their prices for years and the prices of other brewer’s
         label beers and private label beers did not increase either [; i]n recent years, Bavaria and Interbrew have increased their
         prices, followed by Grolsch’ (recital 54 to the contested decision). It is also pointed out that ‘[t]hree to four years ago,
         these informal consultations had been incorporated into the Catherijne consultation on the on-trade, in which representatives
         of the CBK also participated [; a]fter a few meetings, it was decided to split these meetings back into off-trade meetings
         and on-trade meetings’ (recital 54 to the contested decision). 
      
      57      In addition, InBev states that for the Belgian brewer Martens to obtain a certain market share since 1996 to 1997 it had been
         necessary for ‘an agreement between Belgian and Dutch brewers operating on the private labels market [; t]wo meetings took
         place [in a hotel in] Breda in 1998 […; i]t was agreed to respect the relevant volumes for private labels sold to customers
         established in the Netherlands and in Belgium’ (recital 55 to the contested decision).
      
      58      According to the statements by the managers from InBev, the ‘other meetings’ were organised to give each other reassurance
         as to a ‘limited aggression’ on the market (recital 46 to the contested decision).
      
      59      In its reply to the request for information, dated 19 December 2001, InBev states that ‘agendas for the previous years and
         notes taken at the informal meetings were destroyed at the end of November 1998 [; i]t was at about that time that the existence
         of concerted action between Dutch brewers started to be revealed on the market and fears began of an inspection by the Dutch
         competition authority [; a]gendas were also destroyed in the following years’ (recital 61 to the contested decision).
      
      60      It must be noted from the outset that there is no provision or general principle of EU law that prohibits the Commission from
         relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the
         burden of proving conduct contrary to Articles 81 EC and 82 EC, which is borne by the Commission, would be unsustainable and
         incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty
         (see JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 192 and the case-law cited).
      
      61      In the present case, the applicant does not contest the information given in the statement by InBev to the effect that meetings
         took place between representatives of the Dutch beer producers. Nor does it contest that it was represented at most of those
         meetings or that, at the meetings, discussions were held on price levels on the Dutch market and on the application of discounts
         to customers in the on-trade sector.
      
      62      In those circumstances, the Commission was entitled to find that the meetings mentioned in the statement by InBev took place
         and that representatives of the applicant actually participated in at least some of those meetings.
      
      63      The applicant nevertheless disputes that the discussions which were held at the meetings in question led to the conclusion
         of an agreement or an undertaking to engage in an anti-competitive concerted practice. It claims that those meetings dealt
         with legitimate subjects and that, in so far as the situation on the market was discussed, this was not for anti‑competitive
         purposes. In this regard, the applicant contests the reliability of the statement by InBev, claiming that it is vague, incoherent
         and inherently contradictory.
      
      64      In particular, as regards the contradictory character of the statement by InBev, the applicant points out that it contains
         a number of exculpatory statements. 
      
      65      First, there are passages in the supplementary statement by InBev of 3 February 2000 which state: ‘“[W]e talked above all
         to give each other the impression that we would remain calm on the market. There was little or no discussion of sliding scales
         or points of sale. In fact, everyone was taking everyone else for an idiot.” In recent years, these meetings increasingly
         lost their substance and the consultation took on a more vague character’ (recital 46 to the contested decision).
      
      66      Second, the applicant refers to certain passages of the statements by managers from InBev according to which: ‘there was no
         agreement for the food sector’; ‘price increases were not, however, applied under agreements’; ‘I am not aware of agreements
         in the “private labels” sector’; ‘that meeting did not have much substance. It was more a pleasant meeting without a specific
         agenda. General comments were made about discounts. I had the impression that there had already, for some years, been a sort
         of sliding scale system or a rule on discounts, but that was never explicitly stated. We only spoke about overall discount
         levels in very general terms, which was an opportunity to point out certain incidents’; ‘[Interbrew] did not participate in
         any agreement on prices’; ‘nor was there any concerted action. We acted completely independently and, when there were price
         increases for all beers in 1999, we increased A brands (after Bavaria and Grolsch had done so a few months previously) and
         there was strong resistance from our customers in favour of private labels ... we therefore acted perfectly lawfully’.
      
      67      The applicant claims that the abovementioned statements are incompatible with the Commission’s conclusions as to the existence
         of an infringement of Article 81 EC. According to the applicant, it follows that the price increases applied in the off-trade
         sector were not agreed or coordinated, that Interbrew determined its selling prices completely independently, that the Dutch
         brewers have always been in healthy competition, and that there has been no agreement between the brewers on reductions granted
         to the on-trade sector. 
      
      68      It should first be stated that the inferences made by the applicant on the basis of certain information in the statement by
         InBev, indicating the general nature of the discussions, the absence of any agreement for certain sectors and the absence
         of effect of the discussions on the conduct of the brewers on the market, cannot in themselves call into question the Commission’s
         finding relating to the existence of the infringement.
      
      69      As regards the allegedly general character of that statement, it must be pointed out that the Commission often has to prove
         the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have
         elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation
         have not actively cooperated therein. Whilst it is necessarily incumbent upon the Commission to establish that an illegal
         market-sharing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism
         by which that object was attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any
         penalty if it was entitled to base its argument on the vagueness of the information produced regarding the operation of an
         illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been
         sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have
         an opportunity to comment on all the evidence relied on against them by the Commission (JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 203; see also, to that effect, Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 50).
      
      70      Second, as regards the allegedly contradictory character of the statement by InBev, in that it purportedly contains information
         on the absence of any effect of the conduct at issue on the market, it follows from the actual text of Article 81 EC that
         agreements and concerted practices between undertakings are prohibited, regardless of their effect on the market, when they
         have an anti-competitive object (Hüls v Commission, cited in paragraph 36 above, paragraphs 163 to 166, and Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 29).
      
      71      Thus, because the Commission has established the existence of agreements and concerted practices which have an anti-competitive
         object, this finding cannot be refuted by information relating to the non-application of cartel arrangements or the absence
         of any effect on the market.
      
      72      As regards the purported information regarding the absence of any agreement in the off-trade sector or in the on-trade sector,
         it should be noted that the passages relied on by the applicant, read in context, certainly do not rule out the existence
         of an agreement or of a concerted practice in the sectors concerned.
      
      73      With regard to the off-trade sector (retail sales), the assertion made by one of the managers from InBev to the effect that
         ‘[t]here was no agreement for [that] sector’, is followed by a specific description of the price coordination mechanism applied
         by the brewers. The relevant passage reads as follows (recital 51 to the contested decision):
      
      ‘There was no agreement for the retail sales (“food”) sector. As regards the price increases for beer, it was normal for a
         brewery to increase its prices only after informing its fellow brewers in advance. When one of the parties made such an announcement,
         there would be a debate on the impact of such an increase on the market; the price increase for beer had taken place after
         all. The initiative always came from one of the big breweries and generally from Heineken. In such cases, the other breweries
         had the necessary time to take a position. Whilst the breweries broadly aligned their prices with one another, they each had
         and maintained their own pricing policy.’
      
      74      Against this background, the simple fact that the manager from InBev made reference to the absence of any ‘agreement’ cannot
         constitute a valid argument in so far as it is for the Commission and, if appropriate, the Court to undertake the legal categorisation
         of the conduct described in the statements made by the officers of the undertakings concerned.
      
      75      As regards the alleged absence of an agreement and of respect for an agreement in the on-trade sector, the passages of the
         supplementary statement by InBev of 3 February 2000 and of the statements by the managers from InBev, cited in paragraphs
         65 and 66 above, clearly do not have the effect of ruling out the existence of an agreement on the discounts granted to customers
         in that sector. In pointing out that the discussions were general in nature and rarely related to sliding scales or specific
         points of sale, those passages concern the level of detail of the discussions, without refuting the existence of an agreement
         within the meaning of Article 81 EC. They cannot therefore be considered to refute the information given in the statement
         by InBev to the effect that ‘[t]here was an agreement in principle on setting maximum discounts by volume for the on-trade
         sector’ (recital 48 to the contested decision).
      
      76      In the light of the foregoing, the applicant’s arguments concerning the allegedly vague and contradictory character of the
         statement by InBev and, consequently, the supposedly selective way in which the Commission used that statement are not valid.
         
      
      77      Lastly, as regards the general assessment of the reliability of the statement by InBev, the appropriate view, contrary to
         the applicant’s contention, is that the Commission was entitled to attribute to the statement by InBev particularly great
         probative value, since it is an answer given on behalf of an undertaking which as such carries more weight than that of an
         employee of the undertaking, whatever his individual experience or opinion. It should also be noted that the statement by
         InBev represented the outcome of an internal investigation carried out by the undertaking and that it was submitted to the
         Commission by a lawyer, who was under a professional obligation to act in the interests of that undertaking. He could not
         therefore lightly admit the existence of an infringement without evaluating the consequences of so doing (see, to that effect,
         Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 45, and JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 206). 
      
      78      Furthermore, according to case-law, even if some caution as to the evidence provided voluntarily by the main participants
         in an unlawful agreement is generally called for, considering the possibility that they might tend to play down the importance
         of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application
         of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive for the other participants
         in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question
         the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances
         of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70).
      
      79      Admittedly, it must be borne in mind that an admission by one undertaking accused of having participated in a cartel, the
         accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate
         proof of an infringement committed by the latter unless it is supported by other evidence (see, to that effect, Case T‑337/94
         Enso-Gutzeit v Commission [1998] ECR II‑1571, paragraph 91, and JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 219).
      
      80      The statement by InBev cannot therefore suffice, in itself, to establish the existence of the infringement, but must be corroborated
         by other evidence. 
      
      81      Nevertheless, in view of the reliability of the InBev statement, the degree of corroboration required in this case is lesser,
         in terms both of precision and of depth, than would be the case if that statement were not particularly credible. Thus, it
         must be concluded that, if it were to be held that a body of consistent evidence corroborated the existence and certain specific
         aspects of the practices mentioned in the statement by InBev and referred to in Article 1 of the contested decision, that
         statement might be sufficient in itself, in such a case, to constitute evidence of other aspects of the contested decision.
         Moreover, provided that a document does not manifestly contradict the statement by InBev as to the existence or the essential
         content of the contested practices, the fact that it provides evidence of significant elements of the practices which it described
         is sufficient to endow it with corroborative value within the body of inculpatory evidence (see, to that effect, JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 220 and the case‑law cited).
      
      82      In the light of the foregoing, it is necessary to examine the applicant’s arguments concerning other evidence relied on by
         the Commission in the contested decision in order to corroborate the findings relating to the statement by InBev.
      
      –       Other evidence 
      83      In the contested decision, the Commission asserts that the statement by InBev is corroborated by a number of internal documents
         from the applicant and the three other Dutch brewers, handwritten notes from meetings, expense reports and copies of agendas
         obtained following investigations and requests for information. 
      
      84      In recital 67 to the contested decision, the Commission mentions the handwritten notes by a commercial manager from Grolsch
         relating to the meeting held on 27 February 1996, the subject of that meeting being indicated by the note ‘CBK cie HOR cath’.
         Those notes include the following passage: ‘Guarantees/financing: fin[ancing] for ... in excess of needs of specific points.
         So ... mil[lions]’.
      
      85      According to the Commission, it is clear from this passage that the four brewers in question discussed, at a ‘Catherijne’
         meeting, the financial conditions applied or to be applied to certain on-trade customers (recital 72 to the contested decision)
         and, more specifically, to establishments run by a proprietor of multiple on-trade establishments in the Netherlands.
      
      86      In recital 76 to the contested decision, the Commission mentions the handwritten notes by an on-trade manager for Bavaria
         concerning the meeting held on 19 June 1996. The notes are reproduced as follows:
      
      ‘– adapt prices
            off-trade high – low
                  Bavaria – Interbrew consultation
                        ... and ... -> problem ...
                              Martens
                                    Schultenbrau!! 89 ct
            – increase only of cask price
                        arguments
                        only Hein + Grolsch fully
                                          Friesland US Heit
      Interbrew \
                         |               increase together
      Bavaria /
                              -> ... also
            increase bottom more than top
      – air
      – agreements
            stabilise discount for bars 7.5 per cask Heineken
            prepare representatives vis-à-vis possible agreements
      Interbrew \
                        |      air can be used
      Grolsch /’.
      87      According to the Commission, these notes show that the brewers present had detailed discussions of prices, both for private
         label beer and for beer sold in casks, and the price of cheaper beers, produced by Interbrew and Bavaria, was to increase
         more than the price of more expensive beers, produced by Heineken and Grolsch (recital 85 to the contested decision).
      
      88      In recital 89 to the contested decision, the Commission mentions a letter which the managing director of Interbrew Nederland
         sent to InBev’s head office in Belgium on 25 March 1997: 
      
      ‘There is now a consensus between the main brewers to implement a price increase before 1998. This will enable the brewers
         to increase their buffer for the necessary additional promotional budgets. The A brand operators are trying to differentiate
         the price increase between the A brands (+ 2 NLG/hl) and the B brands (+ 4 NLG/hl). This seems highly unrealistic to me –
         we must all support a full increase of NLG 4. I would exclude our special beers “which are easy to drink” (DAS, Hoegaarden,
         Leffe) from the price increase. Negotiations have begun.’
      
      89      The Commission concluded on the basis of that letter that a price increase was planned before 1998 following price negotiations
         between the main producers. In addition, the same letter confirmed the existence of a distinction between more expensive and
         cheaper beer producers and brands (recital 90 to the contested decision).
      
      90      In recital 92 to the contested decision, the Commission mentions the handwritten notes by a member of the board of directors
         of Bavaria concerning the meeting held on 1 May 1997. It cites the following passages:
      
      ‘Catherijne Club 1/5 – 97
      “internal” transfers within the group
      must also respect the “sliding scale”
      ... “The Hague”
      Monster ZH [southern Holland] higher competing offer’.
      91      According to the Commission, these notes confirm that the brewers were discussing a ‘sliding scale’ for the commercial conditions
         granted to individual points of sale, in the case of transfers from one group to another, but also in cases of transfers within
         a single group (recital 99 to the contested decision).
      
      92      In recital 100 to the contested decision, the Commission states that the abovementioned notes also contain the names ‘Heineken/Amstel/Brand/Grolsch’
         on the first line and the names ‘Interbrew/Bavaria’ on the second line, with the two lines being linked by a bracket followed
         by the words ‘no price increases’. The Commission infers that the distinction between the A brands, owned by Heineken and
         Grolsch, and the B brands, owned by Interbrew and Bavaria, was the focus for the discussions between the brewers concerning
         the price increases for beer (recital 103 to the contested decision). 
      
      93      In recital 117 to the contested decision, the Commission mentions the handwritten notes by a member of the board of directors
         of Bavaria concerning the meeting held on 17 December 1997. It cites the following passage:
      
      ‘(2) Price situation:      March/April
            one-stage rocket/two-stage rocket
            (a) Heineken expects little fuss!! Heineken 18.59
      (b) in the event of increase: very negotiable; wholehearted; there will be support’.
      94      The Commission infers that the brewers present at the meeting held on 17 December 1997, including Bavaria, Grolsch and Heineken,
         were discussing price increases and possible reactions to price increases (recital 127 to the contested decision). 
      
      95      In recital 129 to the contested decision, the Commission mentions a passage from the handwritten notes by an on-trade manager
         for Bavaria concerning the meeting held on 12 March 1998: 
      
      ‘– Not much happened since 1 January
      – A brands no panic in relation to price      Hein
      9.95 reduction from 11.49 little point      Int
      9.75      9.36 Bavaria
      2x      4.95 4.75 }→
            private labels
      prices in the lower market segment
      … mid-March Bavaria something
            below Amstel (17) Bavaria (15) 
            from 9.75 to 10.75 if nothing
            happens, then Grolsch and Hein
            increases pocket brewery
      → fix agreement … and Dick
      This must be “demonstrable” via Nielsen otherwise
      nothing will happen’.
      96      According to the Commission, it is clear that the brewers present at the meeting held on 12 March 1998 discussed reductions
         granted to Dutch supermarkets (recital 137 to the contested decision) and that the price increases implemented by Bavaria
         should be demonstrable in the supermarket cash register data compiled by AC Nielsen (recital 133 to the contested decision).
      
      97      In recital 138 to the contested decision, the Commission mentions a second passage from the abovementioned handwritten notes:
      
      ‘Bav      interest      4%?            6 1/2
            unless 
            there is an advertising commission’.
      98      According to the Commission, this passage proves that a discussion was held on the level of interest rates applied to loans
         granted to on-trade points of sale (recital 142 to the contested decision).
      
      99      In recital 143 to the contested decision, the Commission mentions a third passage of the abovementioned handwritten notes:
      
      ‘Football clubs concert halls theatres                  
      Student associations
            …
                                          Grolsch
      above/outside sliding scale
                                    130
      …                        (125) 124.5’.
      
      100    According to the Commission, it is clear that the brewers held a specific discussion on precise on-trade customers in relation
         to a ‘sliding scale’, corroborating the statement by InBev as to the existence of an agreement known as the ‘sliding scale’
         (recital 147 to the contested decision).
      
      101    In recital 156 to the contested decision, the Commission mentions a passage from the handwritten notes by a member of the
         board of directors of Bavaria relating to the meeting held on 3 July 1998: 
      
      ‘… Heineken increased
      … >> Heineken cask beer’.
      102    The Commission infers from this passage that the brewers discussed the prices applied both to customers in the off-trade sector
         and to an on‑trade customer (recitals 162 to 164 to the contested decision).
      
      103    In recital 165 to the contested decision, the Commission mentions another passage from the abovementioned handwritten notes:
      
      ‘Cafe …      1800      …
      
             …      400   …
                        60 per hl      
                              650.000,- V.B.K.’.
      104    According to the Commission, it is clear from this passage that the brewers discussed a discount given and/or a commission
         in respect of the reduction applied or to be applied to specific on-trade points of sale (recital 171 to the contested decision).
      
      105    In recital 174 to the contested decision, the Commission mentions a document dated 30 June 1998 and a Heineken price list
         announcing new prices applicable to bottled beer and draft beer (beer in tanks and beer in casks) from 1 June 1998, discovered
         in the office of an off-trade sales manager for Grolsch, with the note ‘agenda c[ommiss]ie CBK’ (CBK Working Party on agenda).
         According to the Commission, these documents corroborate the statement by InBev to the effect that both off-trade prices and
         competition on the on-trade market were discussed at the meetings in question (recital 175 to the contested decision). 
      
      106    In recital 179 to the contested decision, the Commission mentions a Heineken internal memo dated 14 October 1998, addressed
         to Heineken’s management team, which reads: ‘the price increase promised by Bavaria in the CBK is not apparent in the [figures]
         from Nielsen’. According to the Commission, that memo reinforces the conclusion that, at the meeting held on 12 March 1998,
         Bavaria had announced its intention to be the first to increase its prices in the off‑trade sector, the other brewers were
         to follow subsequently and the increases implemented by Bavaria were to be ‘demonstrable’ in the figures from Nielsen (recital
         180 to the contested decision).
      
      107    In recital 184 to the contested decision, the Commission mentions a letter sent to a manager of Heineken’s Netherlands on-trade
         unit by a marketing and off-trade manager from the Heineken’s Brand BV brewery, regarding his discussion with a member of
         Bavaria’s board of directors:
      
      ‘At the Noordwijk food fair on 9 September [1998], [a member of Bavaria’s board of directors] spoke to me about the matter
         … and Heineken’s reaction. In short, he thought that Heineken could have sat down at the negotiating table with the top management
         at Heineken and Bavaria on the Netherlands on-trade market much earlier. The hectolitres lost could then have been compensated
         for in some other way. Furthermore, he added that in the long term Bavaria perhaps had its sights on other potential customers
         in the on-trade sector who wished to switch voluntarily (with the emphasis on “voluntarily”, as in the case of …, in his view)
         to Bavaria [first name of a Heineken on-trade manager for the Netherlands], it goes without saying that these comments are
         part of the well-known rhetoric of … . I did not want to keep this information from you. All the best for your discussion.’
      
      108    The Commission takes the view that this letter confirms the statement by InBev according to which the brewers were discussing
         not only restrictions on reductions, but also restrictions concerning points of sale which opted for another brewer, and not
         only at multilateral meetings, but also during bilateral meetings (recital 189 to the contested decision).
      
      109    In recital 193 to the contested decision, the Commission mentions the handwritten notes by a managing director of Grolsche
         Bierbrouwerij Nederland on the invitation to the meeting held on 8 January 1999: 
      
      ‘– sales ‘98
      – beer price →
      – pin-partition crates            |      actions/cat II
      – crates                        |      bottom
                                          |      cask
                                          |      NMA’.
      110    Accordingly, in the view of the Commission, the discussions on beer prices focused on four aspects: first, promotional measures
         in the off‑trade market, second, the price of cheaper and private label beers, third, the price of cask beer, the large containers
         used in the on-trade sector of the Dutch beer market and, fourth, the Dutch competition authority, the NMA (recital 194 to
         the contested decision).
      
      111    In recitals 197 and 199 to the contested decision, the Commission mentions the list of subjects for discussion at the meeting
         held on 8 January 1999, on which a representative of Grolsch had noted the abbreviation ‘BP’, which is interpreted by the
         Commission as ‘beer price’ (bierprijs) or ‘floor price’ (bodemprijs), and ‘P[rivate] L[abel] 50 ct. more’. The Commission
         infers from these notes that, as far as cask beer is concerned, the brewers had detailed discussion of prices (recital 203
         to the contested decision).
      
      112    In recitals 212 and 213 to the contested decision, the Commission refers to a document which contains a reference to three
         contacts at management level between Heineken and Grolsch on around 5 July 1999, mentioning a ‘price war’ between the two
         brewers. The Commission infers that Heineken made direct contact with Grolsch about reductions, one and a half months before
         temporary reductions, made by a chain of shops to which Grolsch refused to grant compensation, failed to be actually implemented
         (recital 213 to the contested decision).
      
      113    In recital 224 to the contested decision, the Commission mentions a number of documents included in its administrative file
         which show the subjects discussed at the bilateral meetings between Bavaria and InBev on 8 March 1995, in the second half
         of March 1997, on 12 May 1997, on 19 June 1997 and on 8 September 1997. It cites the following passages:
      
      –        meeting on 8 March 1995: ‘[Bavaria] and [Interbrew Nederland] both said that they had serious problems with Mr ... in the
         Netherlands’ (footnote 491 to the contested decision);
      
      –        meeting on 12 May 1997: mention was made of the ‘price increase’ and ‘private labels as a sword of Damocles ... psychological
         pressure from Grolsch and Heineken in particular to increase prices of private label beer’ (footnote 493 to the contested
         decision);
      
      –        meeting on 19 June 1997: there was discussion of ‘the conduct to be adopted in the private labels segment and, in this connection,
         Interbrew’s position vis-à-vis Martens (regarded as an unwelcome guest in the world of Dutch beer[)]’ (footnote 494 to the
         contested decision);
      
      –        meeting on 8 September 1997: mention was made of ‘the situation on the private labels market in the Netherlands and the fact
         that Bavaria had taken a customer from Interbrew ... lower limit offer made to [customer] ... Bavaria changing the status
         quo ...’ (footnote 495 to the contested decision).
      
      114    The Commission interprets these documents as proof that the bilateral consultations between Bavaria and InBev made it possible
         to maintain an ‘armed peace’ or a ‘non-aggression pact’ as regards private label beer (recital 223 to the contested decision).
      
      115    In recital 227 to the contested decision, the Commission mentions the letter dated 26 September 1997, sent by an exports manager
         for Interbrew Nederland to an exports manager at Interbrew’s head office regarding ‘beer sales in Germany and private labels’:
      
      ‘I recently spoke about this with our main competitor in the Netherlands and on that occasion I learnt that they were to meet
         ... on whether or not to increase the volume of TIP beer for 1998. I asked about the price level towards which they expected
         to work and he confirmed to me exactly the same price, minus a contribution earmarked for the head office of ..., and the
         fact that he would accept a volume of around 200 000 hl at that price.’
      
      116    According to the Commission, it is clear that Interbrew requested and obtained from Bavaria detailed information on prices
         and volumes relating to the possible supply, by Bavaria, of private label beer to a major German retail chain. The Commission
         takes the view that this confirms the statement by InBev according to which Interbrew and Bavaria exchanged information on
         the price levels offered to customers of private label beer. In addition, the Commission asserts that this fact was acknowledged
         by InBev in a letter dated 21 February 2006 (recital 228 to the contested decision).
      
      117    In recital 234 to the contested decision the Commission mentions the following statement by the Haacht brewery regarding the
         meeting held on 14 or 15 June 1998 between Bavaria, Interbrew Nederland and the Belgian brewers Interbrew Belgique, Alken‑Maes,
         Haacht and Martens:
      
      ‘In the course of that meeting, the Dutch breweries were told about the content of the exchange of information between the
         Belgian participants. The Dutch breweries consented to an exchange of information on volumes, types of packaging, the length
         of contracts and possible renewal dates, and customers. With regard to prices, the participants agreed in principle not to
         exchange information on this subject ...
      
      The participants [in] the meeting considered that a neutral party should be given the job of centralising the exchange of
         information. This request was made because the parties present on the Netherlands market did not trust the other parties.
         Haacht was invited to centralise the information since it was not active on the Netherlands market.’
      
      118    The Commission takes the view that, on this point, that statement confirms the statement by InBev (recital 235 to the contested
         decision).
      
      119    In recital 236 to the contested decision, the Commission mentions the handwritten notes from the abovementioned meeting held
         on 14 or 15 June 1998, which were discovered in the office of the secretary of a chair of Bavaria’s management board:
      
      ‘Martens → nothing has ever taken shape in the Netherlands
             → bottom – market – price breaker
                  |→ price offers are made
      Interbrew Nederland – Martens -> offer made to a major private label customer
                                          ...
                                                7.68 [circled]
      Martens – “price drop Belgium”
            now NL → ...
      Interbrew Belgique has made the first move concerning P[rivate] L[abels]
      only for                  ...
      Pilsener                            ...
       / \             /       \
                              multiple single
      ... – “decided” |→ at Interbrew
                              CAT I+II’.
      120    According to the Commission, these notes confirm that Interbrew Belgique took the initiative at a meeting on private label
         beer during which it decided that the contract with a retail purchasing organisation ‘would go to Interbrew in the Netherlands’
         (recital 237 to the contested decision).
      
      121    As regards this latter meeting, the Commission also mentions the following statement by an off-trade manager for InBev, submitted
         by InBev on 21 February 2006 in response to a request for information (recital 238 to the contested decision):
      
      ‘At one point ..., Mr ... from ... disclosed a low price which Martens had offered him. He told me that he had obtained a
         price of NLG 0.32 per bottle. This corresponds to the amount of NLG 7.68 per crate of 24 bottles mentioned in the notes by
         Mr … [manager for Bavaria]. During those discussions, which took place from April to the beginning of June 1998, I suggested
         to him moving to category II and thereby benefiting from lower excise duties. Eventually, at the beginning of June 1998, we
         concluded an agreement with ... on the supply of a new ... category II beer ... Following the reduction in excise duties as
         a result of the move to a category II beer, we were able to propose an amount of NLG 6.36 (including the excise reduction
         of NLG 0.84), thus fending off the offer from Martens.
      
      ...
      At the time of the meeting held on 14 or 15 June 1998, ... Interbrew had reached agreement with ... on supplies of category
         I ... and category II beer. In the course of that meeting, I reported on the discussions and on the agreement reached with
         ... for two reasons. Firstly, I wanted to confront Martens with the offer which it had made to ..., since it had always denied
         having made price offers in the Netherlands. Secondly, I was keen to inform the other participants that they should no longer
         make offers to ..., in view of the agreement concluded between Interbrew and ... . Line n of the [document referred to in
         recital 236 to the contested decision] bears witness to my communication relating to the conclusion of the contract for the
         supply of category I and category II beers between ... and Interbrew. The existence of that agreement ... is evident from
         the fax of 24 June 1998.’
      
      122    In recital 240 to the contested decision, the Commission mentions a statement by the Belgian brewer Haacht regarding the second
         Belgian-Dutch meeting held on 7 July 1998, according to which: 
      
      ‘This was the last meeting which was organised between the parties. At the meeting, Haacht circulated the information collected
         on the Netherlands market.
      
      The parties then changed subjects and discussed certain less important points, but the representative [of] Haacht did not
         take part in that discussion. Whatever the case, no important information was exchanged on these subjects. This meeting gave
         the impression of not producing anything concrete.’
      
      123    According to the Commission, the statement by an off-trade manager for Interbrew confirmed the statement by Haacht according
         to which this was the last Belgian-Dutch meeting. The Commission takes the view that the decision to put an end to these meetings
         was taken for a specific reason, namely the fear that the Dutch competition authority would make an incursion into one or
         more breweries, which is confirmed by the statement by InBev (recital 241 to the contested decision).
      
      124    In recital 248 to the contested decision, the Commission mentions a Heineken internal statement according to which ‘the extremely
         low prices currently applied by the Belgian brewery Martens ... are frustrating the policy of taking the bottom of the market
         to a higher price level’.
      
      125    Lastly, in recital 249 to the contested decision, the Commission mentions the statement made during its inspection on 23 March
         2000 and signed by a managing director of Grolsche Bierbrouwerij Nederland, who became chair of the board of directors at
         Koninklijke Grolsch:
      
      ‘He took the document ... entitled “Price scenarios based on a net increase in wholesale prices of NLG 2.00 per hl”, which
         includes the annotation “CBK – Fie – always take away” to the meetings of the CBK Working Party on finance. He used that document
         to draw the attention of Interbrew and Bavaria (the producers of private label beer in the Netherlands) on price determination,
         in his view unjustifiable, for private label beer (less than 10 florins per crate).’
      
      126    In the same recital to the contested decision, the Commission also mentions the following statement by a managing director
         of Heineken Nederland:
      
      ‘I had already been present at a meeting of the CBK where others spoke about price determination for private labels. Such
         comments will have been made to express a concern. I did not react because in principle Heineken is not involved in the production
         of private labels.’
      
      127    The Commission infers from the passages cited in recitals 248 and 249 to the contested decision that the producers of private
         label beer (Interbrew and Bavaria) revealed their price strategy to Heineken and to Grolsch, which are not active in that
         sector (recital 248 to the contested decision). It concludes that the bilateral discussions between Interbrew and Bavaria
         seeking to increase the price of private label beer formed part of the general discussions held between the four brewers (recital
         252 to the contested decision).
      
      128    It should be stated that the evidence set out above corroborates the statement by InBev and justifies the finding that representatives
         of Heineken, Grolsch, Interbrew and Bavaria met regularly in a cycle of informal meetings known as the ‘Catherijne consultation’
         or ‘Working Party on agenda’, whose composition varied (statement by InBev cited in recital 45 to the contested decision;
         other evidence examined in recitals 65 to 222 to the contested decision). The 18 meetings mentioned in the contested decision,
         which are part of that cycle, took place on 27 February 1996, 19 June 1996, 8 October 1996, 8 January 1997, 1 May 1997, 2
         September 1997, 16 December 1997, 17 December 1997, 12 March 1998, 9 April 1998, 3 July 1998, 15 December 1998, 8 January
         1999, 4 March 1999, 10 May 1999, 11 August 1999, 19 August 1999 and 3 November 1999.
      
      129    As far as the content of the discussions held in those meetings is concerned, the abovementioned evidence corroborates the
         statement by InBev and proves the following:
      
      –        with regard to the off-trade sector:
      –        the four brewers were discussing prices (statement by InBev cited in recital 51 and other evidence cited in recitals 76, 129,
         156, 174, 193, 212 and 213 to the contested decision) and increases in the price of beer in the Netherlands (statement by
         InBev cited in recital 51; other evidence cited in recitals 76, 89, 117 and 179 to the contested decision);
      
      –        discussions on prices were also pursued through bilateral contacts, including between Grolsch and Heineken in July 1999 (document
         cited in recitals 212 and 213 to the contested decision);
      
      –        concrete price proposals were discussed (Interbrew internal letter mentioned in recital 89 to the contested decision) and
         information exchanged was sometimes quite detailed (documents mentioned in recitals 129 and 174 to the contested decision);
         
      
      –        in 1997 and 1998 there was a consensus between the brewers on implementing a price increase before or during 1998 (documents
         mentioned in recitals 89, 174 and 179 to the contested decision); 
      
      –        the producers of ‘A brand’ beer (Heineken and Grolsch), unlike the producers of ‘B brands’ (private label beer) (Interbrew
         and Bavaria), which were opposed, insisted that the price increase be implemented ‘in two phases’, first for B brands and
         then for A brands, and that the rate of increase be differentiated between A brands and B brands (statement by InBev cited
         in recital 53; other evidence mentioned in recitals 76, 89, 100, 117 and 193 to the contested decision);
      
      –        Bavaria announced (probably at the meeting held on 12 March 1998) its intention to increase its prices (evidence mentioned
         in recitals 129 and 179 and statement by InBev cited in recital 51 to the contested decision). The other brewers would probably
         follow Bavaria by increasing their prices subsequently (statement by InBev cited in recital 51 to the contested decision);
      
      –        as far as the monitoring mechanism was concerned, it was agreed that the increases made by Bavaria should be demonstrable
         in the figures from the supermarkets’ database compiled by AC Nielsen (documents mentioned in recitals 129 and 179 to the
         contested decision);
      
      –        there is no evidence that the price increase planned for 1998 took place;
      –        in the consultations on prices, the brewers discussed the situation of certain specific supermarkets (handwritten notes mentioned
         in recitals 76 and 156 to the contested decision);
      
      –        during discussions, the participants indicated specific price figures (documents mentioned in recitals 76, 89, 117, 129 and
         174 to the contested decision);
      
      –        with regard to private label beer:
      –        from 1995, the two Dutch producers of private label beer (Interbrew and Bavaria), on several occasions, expressed their concerns
         over the plans by the Belgian brewer Martens to penetrate the Dutch market in that sector (statement by InBev cited in recital
         55; other evidence cited in recitals 224, 236, 238 and 248 to the contested decision); 
      
      –        these concerns were discussed in the bilateral consultations between Bavaria and InBev (statement by InBev cited in recital
         52; Interbrew internal letter cited in recital 227 to the contested decision) and five bilateral meetings (on 8 March 1995,
         in the second half of March 1997, on 12 May 1997, 19 June 1997 and 8 September 1997) on the subject of this problem (documents
         mentioned in recital 224 to the contested decision);
      
      –        two ‘Belgian-Dutch’ meetings took place in Breda on 14 or 15 June 1998 (documents mentioned in recitals 234, 236 and 238 to
         the contested decision) and on 7 July 1998 (statement by Haacht cited in recital 240 to the contested decision) between Interbrew
         Nederland, Bavaria and the Belgian brewers Interbrew Belgique, Alken-Maes, Haacht and Martens (statement by InBev cited in
         recital 55 to the contested decision);
      
      –        subjects connected with private label beer were also discussed in the presence of Heineken and Grolsch (which are not active
         in that segment) as part of the general discussion (statement by InBev cited in recital 54; other evidence mentioned in recitals
         156, 193, 248 and 249 to the contested decision);
      
      –        the brewers discussed prices of private label beer (statement by InBev cited in recital 54; other evidence mentioned in recitals
         193, 199, 227, 236, 238 and 249 to the contested decision);
      
      –        Heineken and Grolsch exerted ‘psychological pressure’ on Bavaria and Interbrew to increase prices of private label beer (documents
         mentioned in recital 224, in footnote 493 and in recital 248 to the contested decision) by refusing to increase the prices
         of A brands (statement by InBev cited in recital 53 to the contested decision);
      
      –        it was agreed both at bilateral level between Interbrew Nederland and Bavaria and at multilateral level between the Dutch
         and Belgian brewers active in the sector not to attempt to poach customers and to respect the respective volumes of private
         labels in the Netherlands and in Belgium; it was decided, among other things, that the contract with a retail purchasing organisation
         would go to Interbrew Nederland (statement by InBev cited in recital 55; documents mentioned in recitals 224, 236 and 238
         to the contested decision);
      
      –        the brewers exchanged information on the commercial conditions offered to certain specific customers (letter mentioned in
         recital 227 to the contested decision and documents mentioned in recitals 236 and 238 to the contested decision);
      
      –        during discussions, the participants indicated specific price figures (documents mentioned in recitals 236, 238 and 249 to
         the contested decision);
      
      –        with regard to the on-trade sector:
      –        the four brewers discussed prices (documents mentioned in recitals 174, 193 and 197 to the contested decision) and price increases
         (handwritten notes mentioned in recital 76 to the contested decision) in the on-trade sector;
      
      –        there was an agreement between the brewers known as the ‘sliding scale’, which concerned the amount of the discounts to be
         granted to on-trade customers (statement by InBev cited in recital 48; handwritten notes mentioned in recitals 92, 143 and
         165 to the contested decision) and which the brewers should ‘respect’ (handwritten notes mentioned in recital 92 to the contested
         decision); respect for that agreement was monitored and known infringements were discussed in the ‘Catherijne’ meetings (statement
         by InBev cited in recital 48 to the contested decision);
      
      –        the consultations also related to the introduction of restrictions seeking to maintain the status quo in the sector by avoiding
         stealing customers from other brewers (statement by InBev cited in recital 48; Heineken internal letter concerning Bavaria’s
         poaching of a student association, cited in recital 184 to the contested decision);
      
      –        the discussions on such restrictions were also pursued through bilateral contacts; for example, on 9 September 1998, managers
         from Heineken and from Bavaria discussed Bavaria taking an on-trade customer from Heineken (Heineken internal letter cited
         in recital 184 to the contested decision);
      
      –        the brewers exchanged information on certain customers and specific points of sale (documents mentioned in recitals 92, 143,
         156, 165 and 184 to the contested decision);
      
      –        during discussions, the brewers mentioned precise figures concerning the level of discounts and commissions for reductions
         (handwritten notes mentioned in recitals 143 and 165 to the contested decision).
      
      130    It is in the light of this evidence that it is necessary to examine the applicant’s arguments relating to the three aspects
         of the conduct in question, consisting, first, in coordinating prices and price increases for beer in the Netherlands, in
         both the on-trade and the off-trade sector, including with regard to private label beer, second, in occasionally coordinating
         other commercial conditions offered to individual customers in the on-trade sector in the Netherlands and, third, in occasionally
         coordinating customer allocation, in both the on-trade and the off‑trade sector in the Netherlands (Article 1 of and recitals
         257 and 258 to the contested decision).
      
      –       The facts relating to the findings, first, of coordination of prices and price increases for beer and, second, occasional
         coordination of customer allocation
      
      131    The applicant claims, in essence, that the handwritten notes produced by the representatives of the brewers at the meetings
         in question are interpreted by the Commission in a partial and even highly tendentious manner on several occasions.
      
      132    In particular, it contests the interpretation of the evidence mentioned in recitals 76, 89, 92, 100, 117, 129, 143, 156, 179,
         184, 193, 199, 227, 228, 236 and 238 to the contested decision (see paragraphs 86 to 95, 99 to 101, 106 to 111, 115, 116,
         119 and 121 above).
      
      133    Before examining the applicant’s arguments concerning the abovementioned evidence, it should be noted that the majority of
         the factual findings set out in paragraphs 128 and 129 above are based on several pieces of evidence.
      
      134    Firstly, in various parts of the application, the applicant refers to the documentary evidence mentioned in recitals 76, 100,
         117, 156, 193 and 199 to the contested decision to claim, in essence, that that evidence cannot prove coordination of prices
         in both the off-trade sector, including the private label beer segment, and the on-trade sector.
      
      135    With regard to this point, it should be noted, first of all, that the fact that the brewers discussed prices and possible
         price increases in those sectors is also shown by the documents mentioned in recitals 174, 212, 213 and 249 to the contested
         decision. Whilst it is true that those documents primarily concern the discussions between Heineken and Grolsch, the fact
         remains that the applicant knew about those discussions, at least some of which took place in its presence (see the document
         cited in recital 249 to the contested decision and in paragraph 125 above), and that it can therefore be held responsible
         (see, to that effect, Commission v Anic Partecipazioni, cited in paragraph 36 above, paragraphs 80 to 83).
      
      136    It should also be noted that, contrary to the claims made by the applicant, it is clear from the documents cited in recitals
         76, 100, 117 and 156 to the contested decision that there was much more than mere discontent among the brewers over off-trade
         price levels. These documents prove that in their discussions they touched on the situation of certain customers and specific
         points of sale and mentioned precise figures for prices and discounts. 
      
      137    Secondly, the applicant claims that the Heineken internal letter concerning Bavaria’s poaching of a student association (recital
         184 to the contested decision) is the only piece of evidence which specifically bears witness to discussions between the brewers
         (in this instance Heineken and Bavaria) on the subject of on‑trade customers being stolen (see paragraph 107 above). According
         to the applicant, it can be inferred from that letter, at the very most, that the representative of Heineken expressed his
         discontent at the loss of a very big on-trade customer. The applicant denies, moreover, the existence of a system of compensation
         between the brewers in the event of customers being poached, claiming that the existence of such a system would be incompatible
         with the existence of the alleged concerted action on customer allocation.
      
      138    These claims made by the applicant are not plausible. In the contested decision, the Commission rightly notes that the sentence
         ‘[t]he hectolitres lost could then have been compensated for in some other way’, in the text of the letter in question, indicates
         that there was no discussion between Heineken and Bavaria on the need for compensation, but only on the means of obtaining
         compensation (recital 185 to the contested decision), and that the use of the words ‘well-known rhetoric’, ‘emphasis’ and
         ‘voluntarily’ signifies that, according to the author, who comes from Heineken, Bavaria is suspected of failing to respect
         a rule that brewers must not actively solicit on-trade customers from other brewers (recital 188 to the contested decision).
      
      139    Consequently, the evidence mentioned in recitals 184 to 188 to the contested decision corroborates the statements contained
         in the statement by InBev, cited in recital 48 to the contested decision, regarding the existence of an arrangement not to
         steal on-trade customers.
      
      140    Thirdly, the applicant claims that, despite the mention of a ‘consensus’ in the letter of 25 March 1997 (cited in recital
         89 to the contested decision), of a promise by Bavaria in the Heineken internal memo of 14 October 1998 (cited in recital
         179 to the contested decision) concerning the price increase in the off-trade sector and the exact level of such an increase
         in the handwritten notes made by an on-trade manager for Bavaria (cited in recital 129 to the contested decision), and the
         discussion of discounts granted to the on-trade sector, reflected in the handwritten notes cited in recitals 92 and 143 to
         the contested decision, the brewers continued to apply their strategies on the market independently.
      
      141    With regard to the statement in the Heineken internal memo (mentioned in recital 179 to the contested decision) according
         to which ‘the price increase promised by Bavaria in the CBK is not apparent in the [figures] from Nielsen’, the applicant
         comments that the use of the term ‘promise’ to describe its price increase announcement, which had been known about on the
         market for some months, does not constitute convincing proof of a cartel. 
      
      142    However, it should be noted that, as the Commission rightly states in recital 182 to the contested decision, to interpret
         the word ‘promise’ as simply ‘mentioning’ a price increase is a departure from its ordinary meaning. The existence of a commitment
         by the applicant to increase its prices is corroborated by the mention of the fact that the increase ‘is not apparent in the
         [figures] from Nielsen’. The supermarket cash register data in question were used as a monitoring tool through which the price
         increase by Bavaria was to be made ‘demonstrable’ (recital 133 to the contested decision). The reference to those data, which
         also appears in the handwritten notes by the on-trade manager for Bavaria (cited in recital 129 to the contested decision),
         falls more logically into the context of monitoring the implementation of a commitment than verifying a simple mention.
      
      143    In addition, the existence of a consensus to increase prices before 1998 is very clear from the Interbrew internal letter
         of 25 March 1997 (cited in recital 89 to the contested decision). With regard to the applicant’s argument relating to the
         fact that no price increase was actually implemented before 1998, it is sufficient to note that the simple failure to execute
         an agreement on prices does not in itself mean that the agreement itself never existed. 
      
      144    The fact that the price increase mentioned in the letter was to happen ‘before 1998’, when the abovementioned evidence was
         produced in 1998, also cannot refute the existence of a link between those documents. It is perfectly conceivable that, on
         account of the difficulties connected with the negotiation of the arrangements for implementation (in particular, the differentiated
         price increase for A and B brands referred to in the Interbrew internal letter), the price increase initially planned for
         a date in 1997 was first put back to the following year and then abandoned by the brewers.
      
      145    With regard to the applicant’s claim that, despite the discussion of discounts granted to the on-trade sector, the brewers
         continued to apply their own strategies on the market independently, subject to proof to the contrary, which the economic
         operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted action 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 will be all the more true where the undertakings concert together on a regular basis over a long
         period, as was the case here (see, to that effect, Hüls v Commission, cited in paragraph 36 above, paragraph 162).
      
      146    Fourthly, with regard to its bilateral consultation with Interbrew in the private label beer segment, first of all, the applicant
         claims that the Interbrew internal letter dated 26 September 1997 (cited in recital 227 to the contested decision) and the
         statement by InBev of 21 February 2006 (cited in recital 228 to the contested decision) concern a customer established in
         Germany and cannot therefore, in themselves, constitute evidence of an infringement concerning the Dutch market. Second, as
         regards the evidence relating to the meeting held on 14 or 15 June 1998, namely the handwritten notes by one of the applicant’s
         managers (cited in recital 236 to the contested decision) and the passage from the statement by InBev of 21 February 2006
         (cited in recital 238 to the contested decision), according to which it was decided that a contract with a retail purchasing
         organisation would go to Interbrew in the Netherlands and the manager from InBev informed the other participants that they
         should no longer make offers to that organisation, the applicant claims that it is clear from the evidence in question that
         that decision had already been taken at the time of the meeting. According to the applicant, that evidence does not therefore
         show concerted action between itself and the other brewers on the future supplier for the organisation in question.
      
      147    It should be noted in this regard that the evidence relied on by the Commission to demonstrate bilateral concerted action
         between the applicant and Interbrew is not limited to that mentioned in paragraph 146 above, but also includes the documents
         mentioned in recital 224 to the contested decision, concerning a series of bilateral meetings between the applicant and Interbrew,
         the interpretation of which is not contested by the applicant. It is apparent from those documents in particular that the
         subjects discussed included ‘the situation on the private labels market in the Netherlands and the fact that Bavaria had taken
         a customer from Interbrew ... [and the] lower limit offer made to [the customer]’ (recital 224 and footnote 495 to the contested
         decision).
      
      148    In addition, even though the evidence mentioned in recitals 227 and 228 to the contested decision concerns a customer established
         in Germany and the evidence mentioned in recitals 236 and 238 addresses a fait accompli, the fact remains that that evidence
         provides a pertinent indication as to the existence of a practice between the applicant and Interbrew of exchanging sensitive
         information on the market and thus corroborates the evidence mentioned in recital 224 to the contested decision in support
         of the finding of bilateral concerted action between those undertakings in the private label beer segment.
      
      149    Fifthly, with regard to its participation in the meetings in Breda with Interbrew Nederland and the Belgian brewers Interbrew
         Belgique, Alken-Maes, Haacht and Martens, the applicant points out that those meetings were organised on the initiative of
         Interbrew and makes reference to the following statements by the Belgian brewer Alken‑Maes and Groupe Danone SA, cited in
         recitals 160 and 177 to Commission Decision 2003/569/EC of 5 December 2001 relating to a proceeding under Article 81 [EC]
         (Case IV/37.614/F3 PO/Interbrew and Alken‑Maes) (OJ 2003 L 200, p. 1):
      
      –        Alken-Maes: ‘As regards the Dutch market, any exchange of information was refused’;
      –        Groupe Danone: ‘In addition, the private label market was not mapped out in its entirety, as the foreign brewers refused to
         take part’.
      
      150    However, those statements must be interpreted in the light of the evidence mentioned by the Commission in recitals 234, 240
         and 241 to the contested decision. 
      
      151    First of all, according to the statement by Haacht regarding the first meeting on 14 or 15 June 1998, the refusal to exchange
         information applied only to prices: ‘with regard to prices, the participants agreed in principle not to exchange information
         on this subject ...’ By contrast, the Dutch brewers ‘... consented to an exchange of information on volumes, types of packaging,
         the length of contracts and possible renewal dates, and customers’. That statement also asserts that ‘the participants [in]
         the meeting considered that a neutral party should be given the job of centralising the exchange of information [; t]his request
         was made because the parties present on the Netherlands market did not trust the other parties[;] Haacht was invited to centralise
         the information since it was not active on the Netherlands market’. 
      
      152    Next, according to the statement by Haacht on the subject of the second meeting on 7 July 1998, at that meeting, ‘Haacht circulated
         the information collected on the Netherlands market’. 
      
      153    Lastly, according to the statement by an off-trade manager for InBev (recital 241 to the contested decision), ‘Bavaria and
         Interbrew communicated only the volumes for each private label and for each customer, since the [Belgian] breweries had also
         indicated the reductions [; t]his overview was produced by the commercial manager for Haacht [; h]e sent it to the private
         addresses of those present’.
      
      154    In the light of this evidence, the applicant’s arguments regarding the absence of an agreement with the other participants
         in the meetings with a view to exchanging confidential business information cannot be accepted.
      
      155    In the light of all the foregoing, in the contested decision the Commission set out a body of specific consistent evidence
         to demonstrate, to the requisite legal standard, the factual findings relating to the aspects of the infringement in question
         concerning the coordination of prices and price increases and customer allocation. Moreover, the validity of those findings
         is not called into question by the applicant’s arguments concerning the evidence set out in paragraph 132 above.
      
      156    Consequently, the applicant’s arguments alleging an error of assessment of the facts relating to these two aspects of the
         infringement in question must be rejected.
      
      –       The facts relating to the finding of occasional coordination of other commercial conditions offered to individual customers
         in the on-trade sector
      
      157    The applicant claims that the Commission did not establish that the undertakings concerned coordinated commercial conditions,
         other than prices, granted to customers in the on-trade segment.
      
      158    The Commission takes the view that the handwritten notes mentioned in recitals 67 and 138 to the contested decision contain
         proof of occasional coordination, between the four brewers, of certain commercial conditions, such as conditions for loans,
         offered to individual on-trade customers (recital 258 to the contested decision).
      
      159    The handwritten notes cited in recital 67 to the contested decision include the following: ‘Guarantees/financing: fin[ancing]
         for ... in excess of needs of specific points. So ... mil[lions]’.
      
      160    According to the Commission, this quotation therefore means that, at the meeting held on 27 February 1996, the brewers discussed
         the guarantees and financing granted or to be granted by one or more brewers to specific sales outlets (recital 68 to the
         contested decision).
      
      161    However, it should be noted that the applicant proposes another plausible interpretation of the passage mentioned by the Commission,
         stating that it was part of a discussion on ‘bad debtors’.
      
      162    In recital 138 to the contested decision, the Commission mentions the handwritten notes by an on-trade manager for Bavaria
         relating to the meeting held on 12 March 1998, containing the following passage: ‘Bav interest ...%? unless there is an advertising
         allowance’. According to the Commission, this passage proves that a discussion was held concerning the level of interest rates
         applied to loans granted to on‑trade points of sale (recital 142 to the contested decision).
      
      163    However, even supposing that the Commission has correctly interpreted the handwritten notes, the isolated and laconic nature
         of such a reference and the absence of any specific information concerning participation by the other brewers in a discussion
         on the subjects in question do not allow those notes to be regarded as sufficient proof of the existence of collusion in relation
         to occasional coordination of certain commercial conditions.
      
      164    In its answers to the questions asked by the Court, the Commission claims that the handwritten notes, mentioned in recitals
         67 and 138 to the contested decision, are corroborated by the statement by InBev, according to which, first, the ‘Catherijne’
         meeting on 12 March 1998 was devoted both to on-trade and off-trade matters and, second, the participants in the ‘Catherijne’
         meetings consulted on investments in the on-trade sector in order to avoid taking customers.
      
      165    It must nevertheless be stated that the two passages cited by the Commission and the reference made by the Commission to ‘the
         spirit of the statement by InBev’ do not offer a specific indication as to the existence of discussions between the brewers
         concerning the coordination of loan conditions and cannot therefore support the conclusion to that effect drawn by the Commission.
      
      166    Consequently, it should be noted that the finding by the Commission relating to occasional coordination, between the brewers,
         of the loan conditions offered to individual on-trade customers is based on fragmentary and imprecise evidence.
      
      167    In view of the isolated and laconic nature of the references made in the handwritten notes mentioned in recitals 67 and 138
         to the contested decision and the alternative plausible interpretation suggested by the applicant and the absence of specific
         indications in this regard in the statement by InBev, it should be stated that the Commission did not demonstrate, to the
         requisite legal standard, that the infringement in question included ‘occasional coordination of other commercial conditions
         offered to individual consumers in the on-trade segment in the Netherlands’.
      
      168    The finding made to this effect, in recital 258 to and in Article 1 of the contested decision, cannot therefore be regarded
         as established.
      
      169    Consequently, the applicant’s arguments alleging an error of assessment of the facts relating to occasional coordination of
         other commercial conditions offered to individual customers in the on-trade sector must be accepted.
      
      –       The alleged error of law and in the treatment of the facts
      170    The applicant claims that the finding by the Commission as to the existence of a complex of agreements and/or concerted practices
         between undertakings within the meaning of Article 81 EC stems from an error relating to the interpretation and the application
         of that provision (recitals 337 and 341 to the contested decision).
      
      171    It should be stated, first of all, that, in the multilateral meetings and their bilateral contacts, on several occasions the
         four brewers exchanged sensitive information on the market (prices, the amount of discounts and specific offers to certain
         customers), which were sometimes fairly detailed (documents mentioned in recitals 129 and 174 to the contested decision) and
         included specific figures for prices (documents mentioned in recitals 76, 89, 117, 129 and 174 to the contested decision),
         discounts and commissions for reduction (documents mentioned in recitals 143 and 165 to the contested decision), as well as
         information on customers and points of sale both in the on-trade sector (documents mentioned in recitals 92, 143, 156, 165
         and 184 to the contested decision) and in the off-trade sector (documents mentioned in recitals 76 and 156 to the contested
         decision).
      
      172    Certain specific proposals concerning conduct on the market were also discussed, in particular the proposal to implement a
         two-phase price increase in the off-trade sector (document mentioned in recital 89 to the contested decision).
      
      173    In addition, the fact that no official minutes were ever taken for the ‘Catherijne’ meetings, that the substance of the discussions
         was almost never reflected in an internal memo and that agendas and notes from those meetings were destroyed in November 1998
         (statement by InBev cited in recital 61 to the contested decision) indicates that, contrary to the claims made by the applicant,
         the discussions were secret and that the participants were aware that their conduct was unlawful and attempted to conceal
         it.
      
      174    Contrary to the claims made by the applicant, it is apparent from the documentary evidence examined by the Commission that
         a consensus was reached on certain proposals, such as on awarding a contract with a retail purchasing organisation to Interbrew
         (document mentioned in recital 236 and footnote 531 to the contested decision) and on the concerted price increase before
         or during 1998 (document mentioned in recital 89 to the contested decision).
      
      175    The existence, in this latter case, of an agreement within the meaning of Article 81 EC is not called into question either
         by the likelihood that the consensus between the brewers did not extend to the practical arrangements for implementing the
         price increase or the fact that that increase never actually took place on the market.
      
      176    Even supposing that an agreement was never reached on specific elements of the planned restriction, the Commission rightly
         found that, by regularly holding their discussions, the brewers had clearly shown their common intention to reach an anti-competitive
         agreement (recital 341 to the contested decision). 
      
      177    All the same, the continued exchange of sensitive information, which was not available to the public and which the representatives
         of the four brewers found useful to note on their agendas and to mention in their internal correspondence, certainly had the
         effect of reducing, for each of them, uncertainty over the conceivable conduct of their competitors. 
      
      178    In this regard, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must
         be that the undertakings taking part in the concerted action 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 will be all the more true
         where the undertakings concert together on a regular basis over a long period, as was the case here (see, to that effect,
         Hüls v Commission, cited in paragraph 36 above, paragraph 162).
      
      179    The applicant essentially considers that it has rebutted this presumption by showing that, despite the discussions, the four
         brewers determined their conduct on the market autonomously.
      
      180    That argument cannot be accepted. It is certainly true that both the statements by the managers from InBev and the fact that
         Heineken did not increase its prices until February 2000 demonstrate that, during the period in question, each brewer pursued
         its own policy on the market. Nevertheless, even though this finding may show the absence of formal commitments or actual
         coordination between the brewers, it is not sufficient to prove that the brewers never took into account the information exchanged
         at the meetings in question in order to determine their conduct on the market as they wished. 
      
      181    The applicant has not therefore successfully rebutted the presumption based on the case-law cited in paragraph 178 above.
      
      182    Consequently, it should be stated that the constituent elements of a concerted practice, based on the case-law cited in paragraphs
         36 and 37 above, are present in this case in relation to the conduct in connection with, first, coordinating prices and price
         increases for beer and, second, occasionally coordinating customer allocation.
      
      183    In these circumstances, it should be noted that the Commission was entitled to characterise the conduct in question as a ‘complex
         of agreements and/or concerted practices’ in so far as that conduct involved at one and the same time elements to be characterised
         as ‘agreements’ and elements to be characterised as ‘concerted practices’. Given such a complex factual situation, the dual
         characterisation by the Commission in Article 1 of the contested decision must be understood not as requiring, simultaneously
         and cumulatively, proof that each of those factual elements presents the constituent elements both of an agreement and of
         a concerted practice, but rather as referring to a complex whole comprising a number of factual elements some of which were
         characterised as agreements and others as concerted practices for the purposes of Article 81 EC, which lays down no specific
         category for a complex infringement of this type (see, to that effect, Hercules Chemicals v Commission, cited in paragraph 34 above, paragraph 264).
      
      184    Lastly, the applicant contests, relying on a breach of the ne bis in idem principle, that it cannot be held responsible for the alleged concerted action with the Belgian brewers concerning the private
         label beer segment.
      
      185    It claims, in particular, that the Belgian-Dutch concerted action had already been the subject of Decision 2003/569 and that,
         in that decision, it was not penalised for attending the meetings in Breda with Interbrew Nederland and the Belgian brewers
         Interbrew Belgique, Alken-Maes, Haacht and Martens, with the result that the Commission could not penalise it again without
         breaching the ne bis in idem principle, which prohibits an undertaking being liable for conduct of which it has previously been acquitted.
      
      186    It should be noted that the ne bis in idem principle, which constitutes a general principle of EU law, whose observance the Courts ensure, prohibits the same person
         from being penalised more than once for the same unlawful conduct in order to protect one and the same legal interest. The
         application of that principle is subject to three cumulative conditions: the identity of the facts, the unity of offender
         and the unity of the legal interest protected (Aalborg Portland and Others v Commission, cited in paragraph 41 above, paragraph 338).
      
      187    In the present case, it should be noted that the applicant is not among the addressees of Decision 2003/569 or the addressees
         of the statement of objections adopted in the procedure leading to the adoption of that decision. It is clear from recitals
         250 to 260 to Decision 2003/569 that the applicant’s participation in the meetings in Breda is mentioned solely in the statement
         of facts and is not the subject of any legal assessment by the Commission. It is also apparent that the purpose of that decision
         was not to rule on the applicant’s involvement in the Belgian-Dutch concerted action.
      
      188    Consequently, since the applicant was not penalised in Decision 2003/569 for the unlawful conduct in question in the present
         case, its arguments alleging a breach of the ne bis in idem principle are unfounded.
      
      189    In the light of all the foregoing, the applicant’s arguments alleging an error of law cannot be accepted.
      
      190    Lastly, since the applicant has not demonstrated that the contested decision is vitiated by an error of law in the application
         of Article 81(1) EC, it is also necessary to reject its argument, based on essentially the same premiss, that the Commission
         misinterpreted that provision, in breach of the principle of the presumption of innocence, and failed to provide sufficient
         grounds in support of the finding of the infringement.
      
      –       Conclusion
      191    Following the examination of the second plea above, it should be noted that the Commission’s finding as to the existence of
         occasional coordination of commercial conditions, other than prices, offered to individual consumers in the on-trade sector
         in the Netherlands is not demonstrated to the requisite legal standard and cannot be accepted (see paragraphs 159 to 169 above).
      
      192    Consequently, Article 1 of the contested decision must be annulled in so far as it establishes that aspect of the infringement
         in question and the amount of the fine imposed on the applicant must be adjusted accordingly. The practical consequences of
         that adjustment will be set out in paragraphs 344 and 345 below.
      
      193    The remainder of the second plea must be rejected.
      
       The third plea, concerning the duration of the infringement
       Arguments of the parties
      194    The applicant disputes the determination of 27 February 1996 and 3 November 1999 as the start and end dates of the infringement
         attributed to it. It considers, among other things, that the start and end of the infringement are subject to a heavier burden
         of proof, which is not satisfied in the present case.
      
      195    With regard to the meeting on 27 February 1996, held to be the start date of the infringement, the applicant claims that the
         handwritten notes mentioned by the Commission in recital 67 to the contested decision concern a general discussion relating
         to ‘bad debtors’ in the on-trade sector, which cannot be regarded as restrictive of competition.
      
      196    With regard to the meeting on 3 November 1999, held to be the end date of the infringement, the applicant claims that the
         Commission’s finding relating to the unlawful character of that meeting is refuted by the statements made by the managers
         from InBev. 
      
      197    The Commission contests the applicant’s arguments.
      
       Findings of the Court
      198    The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of
         which is borne principally by the Commission. In this regard, according to the case-law, if there is no evidence directly
         establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate
         in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see
         Peróxidos Orgánicos v Commission, cited in paragraph 78 above, paragraph 51 and the case-law cited).
      
      199    In the present case, the applicant disputes the determination of both the start date and the end date of the infringement.
      
      –       The determination of the start date of the infringement
      200    The Commission held 27 February 1996 to be the start date of the infringement in question, this being the date of the first
         ‘Catherijne’ meeting for which it had direct proof of the presence of the four brewers. 
      
      201    As was stated in paragraphs 159 to 169 above, the handwritten notes concerning that meeting, cited in recital 67 to the contested
         decision, do not, in themselves, constitute a body of evidence to justify, to the requisite legal standard, the finding of
         the infringement relating to occasional coordination of other commercial conditions offered to individual consumers in the
         on-trade sector.
      
      202    However, this consideration does not mean per se that that same evidence cannot be used to determine the start date of the
         infringement as a whole.
      
      203    Indeed, the meeting on 27 February 1996 was part of a series of periodic meetings which involved the same participants and
         took place in similar circumstances. They were known as the ‘Catherijne consultation’ and the ‘Working Party on agenda’, brought
         together representatives of the four Dutch brewers Heineken, InBev, Grolsch and Bavaria, were held in parallel with the official
         meetings of the CBK and the discussions held were never recorded in minutes and almost never in internal memos. In the statement
         by InBev, these meetings are also presented as forming part of a series and a table showing names, addresses, dates and locations
         of the majority of them, including the meeting on 27 February 1996, is annexed (recital 44 to the contested decision).
      
      204    It has already been established, on the basis of both the statement by InBev and a large body of other evidence, that the
         meetings forming part of this series had an anti-competitive object (see paragraphs 171 to 176 above). Thus, first, a body
         of evidence showing the systematic character of the meetings and their anti‑competitive content and, second, the statement
         by InBev, which has high probative value, show that, unless proved otherwise, the anti-competitive object applies to all the
         meetings in question, even in the absence of sufficient proof regarding the content of some of them.
      
      205    The applicant essentially considers that this logic cannot be applied to the determination of the start and end dates of the
         infringement. It claims, inter alia, that the Commission must demonstrate to the requisite legal standard the precise start
         date of the infringement.
      
      206    It should be noted in this regard that, in determining the start date of the infringement, the Commission did not merely rely
         on evidence relating to the meeting held on 27 February 1996. 
      
      207    In recitals 466 to 469 to the contested decision, the Commission states, with regard to each of the brewers concerned, including
         the applicant, that it participated in the infringement ‘at least between 27 February 1996 and 3 November 1999’. In recital
         56 to the contested decision, it also states that, according to the statement by InBev, the infringement began well before
         1996, namely:
      
      –        ‘in 1990 or even earlier’ with regard to the discussions concerning increases in on-trade prices;
      –        in ‘1993-94’ with regard to the discussions concerning discounts and transfers between brewers of on-trade points of sale;
      –        in ‘1987’ with regard to the discussions between Oranjeboom-Interbrew and Bavaria concerning private label beer. 
      208    In view of the considerable probative value of the statement by InBev, the Commission was able to find that the infringement
         in question began at least on the date of the first meetings in 1996, set out in the table annexed to the statement by InBev,
         at which InBev was represented following its acquisition of Oranjeboom in 1995.
      
      209    Consequently, in so far as, first, it has been shown that the applicant was represented at the meeting held on 27 February
         1996 and, second, according to the statement by InBev, the applicant was involved in the ‘Catherijne’ meetings from the beginning
         in 1993 or in 1994, the Commission was fully entitled to find that the applicant was involved in the infringement in question
         at least from 27 February 1996.
      
      210    The fact that the contested decision did not determine the existence of an infringement before that date actually constitutes
         a concession to the addressees of the contested decision. In this regard, it should be noted that the Court is not called
         on to rule on the lawfulness or the expediency of that concession (see, to that effect, JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraphs 340 and 341). 
      
      211    In these circumstances, with regard to a meeting forming part of a system of regular meetings whose anti-competitive character
         has been demonstrated to the requisite legal standard, the finding of the start date of the infringement cannot be called
         into question by the applicant’s arguments alleging that there is insufficient tangible proof as to the content of the meeting
         on 27 February 1996.
      
      212    Consequently, the complaint relating to the determination of the start date of the infringement must be rejected. 
      
      –       The determination of the end date of the infringement
      213    The Commission took 3 November 1999 to be the end date of the infringement for all the brewers concerned (recitals 466 to
         469 to the contested decision), this being the date of the last ‘Catherijne’ meeting for which the Commission had direct proof
         of the presence of the four brewers. That meeting appears at the bottom of the chronological table annexed to the statement
         by InBev. According to a reply by InBev to a request for information from the Commission, the meeting on 3 November 1999 was
         a ‘Catherijne meeting (on-trade matters/Working Party on agenda) [; a]s always in the Catherijne consultations, discussions
         were primarily about excessive agreements and peaceful coexistence’ (recital 221 to the contested decision).
      
      214    The applicant takes the view that that statement is refuted by the statements of the managers from InBev who attended the
         meeting held on 3 November 1999, quoting the following passages: 
      
      –        ‘On 19 August 1999, there was a consultation which I attended. On 3 November 1999, there was a meeting which Mr ... and I
         attended. We did not speak specifically about conduct on the market in either case. The meeting had a more informal character’;
      
      –        ‘There were meetings of the four on-trade managers (Heineken, Grolsch, Bavaria and Interbrew). I attended just one of those
         meetings, on 3 November 1999 in Enschede. Mr ... took me to introduce myself. That meeting did not have much substance. It
         was more a pleasant meeting without a specific agenda. General comments were made about discounts. I had the impression that
         there had already, for some years, been a sort of sliding scale system or a rule on discounts, but that was never explicitly
         stated. We only spoke about overall discount levels in very general terms, which was an opportunity to point out certain incidents.
         My feeling is that the sliding scale was not working. Each operator determined its own strategy. There were perhaps some attempts
         at intimidation, but everyone still did as they wished’.
      
      215    It should be stated that, contrary to the claims made by the applicant, the statements on which it relies do not refute the
         evidence invoked by the Commission. The references to ‘excessive agreements’, ‘peaceful coexistence’, the ‘sliding scale’
         and the ‘rule on discounts’ clearly relate to the coordination of discount rates applied to on-trade customers. The only clarification
         made in the statements by the managers from InBev concerns the level of detail of the discussions, which were allegedly limited
         to ‘general comments’, and the absence of their effect on the market, namely the fact that ‘the sliding scale was not working’.
         However, it has already been noted that neither the general nature of the discussions nor the absence of any effect on the
         market can refute the fact that the meeting in question constitutes an infringement (see paragraphs 69 to 71 above).
      
      216    The fact that the meeting on 3 November 1999 formed part of a system of anti‑competitive meetings (see paragraphs 203 and
         204 above) and that the subjects discussed were connected with previous anti‑competitive discussions also indicates that the
         very purpose of calling the meeting was to provide the necessary conditions so that those discussions could continue.
      
      217    In any event, even supposing there is some contradiction between the statements by the employees of InBev relied on by the
         applicant, on the one hand, and InBev’s reply to the request for information, on the other, it should be borne in mind that
         the probative value of the latter is higher, having regard to the case-law according to which a statement given on behalf
         of the undertaking as such carries more weight than that of an employee of the undertaking, whatever his individual experience
         or opinion (see, to that effect, LR AF 1998 v Commission, cited in paragraph 77 above, paragraph 45).
      
      218    Consequently, the complaint relating to the determination of the end date of the infringement and, therefore, the third plea
         in its entirety must be rejected. 
      
       The first plea, alleging a breach of the principle of sound administration
       Arguments of the parties
      219    The applicant submits, in essence, that the Commission breached the principle of sound administration in so far as it failed
         to conduct a full, careful and impartial investigation. Firstly, the applicant claims that the Commission systematically interpreted
         the documents in the investigation file in a partial and tendentious manner. Secondly, it claims that the statements from
         InBev’s leniency application, as the fundamental pillar of evidence on which the Commission relies, should have been assessed
         with greater reservations. Thirdly, the applicant states that the Commission was manifestly selective in its use of the other
         evidence available to it and, in the contested decision, cited only the passages of that evidence which allowed it to establish
         the existence of an infringement, whilst deliberately disregarding the arguments of the other parties which would have refuted
         its conclusions. Fourthly, the applicant criticises the Member of the Commission responsible for competition for the statements
         which he made to the public in a Dutch television programme immediately after the statement of objections was adopted. Those
         statements showed, among other things, that, for the Commission, the brewers’ guilt was already established before they had
         had an opportunity to defend themselves against the statement of objections. 
      
      220    Fifthly, the applicant criticises the Commission for modifying the objections in the course of the investigation. In essence,
         it claims that the objection relating to occasional coordination of customer allocation in the on-trade sector and the off‑trade
         sector did not appear in the statement of objections. Sixthly, the applicant argues that the Commission did not analyse the
         evidence showing that it competed vigorously and set its prices autonomously.
      
      221    The Commission contests the applicant’s arguments.
      
       Findings of the Court
      222    It is settled case-law that the rights guaranteed by the EU legal order in administrative procedures include, in particular,
         the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case
         (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14).
      
      223    In the present case, firstly, with regard to the allegation that the Commission failed to examine the evidence carefully and
         impartially, it must be stated that, as has already been established following the examination of the second plea above, the
         Commission set out sufficient proof of the existence of an infringement of Article 81 EC, as far as two aspects of the infringement
         in question were concerned (see paragraph 155 above). In the examination of that plea, the Court has already considered the
         applicant’s criticisms concerning the assessment of the statement by InBev and of the evidence seeking to establish proof
         to the contrary furnished in the administrative procedure.
      
      224    In these circumstances, the applicant’s arguments alleging the absence of a full, careful and impartial investigation merge
         with the arguments examined in connection with the second plea above and do not require a separate examination.
      
      225    Secondly, in so far as the applicant’s arguments relating to the statements made by the Member of the Commission responsible
         for competition can actually be interpreted as alleging a breach of the principle of the presumption of innocence, it must
         be stated that the argument put forward is not relevant to the outcome of the present dispute.
      
      226    The existence of an infringement must be assessed having regard only to the evidence gathered by the Commission. Where the
         substance of an infringement is actually established following the administrative procedure, evidence of a premature manifestation
         by the Commission, during that procedure, of its conviction that the infringement exists is not of such a kind as to deprive
         the actual evidence of the infringement itself of its reality (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95
         to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 726).
      
      227    In any event, the comments made by a Member of the Commission during a Dutch television programme, where he mentioned, in
         connection with examples of action taken by the Commission, that Dutch consumers ‘have paid too much for their beer’ as a
         result of the brewers’ conduct, though the choice of his words might be unfortunate, cannot show that the Commission prejudged
         its decision.
      
      228    The Commission, as a college, deliberates on the basis of a draft decision. In this regard, contrary to the claims made by
         the applicant, the comments by the Member of the Commission concerned where he mentioned the action taken by the Commission
         certainly did not imply that the Commission considered the brewers’ guilt to be already established. 
      
      229    Thirdly, with regard to the arguments alleging a lack of consistency between the statement of objections and the contested
         decision, as regards the objection relating to customer allocation in the on-trade and off-trade sectors, the applicant’s
         criticisms must be regarded as unfounded.
      
      230    According to the statement of objections, the Commission clearly stated that the parties were guilty of such concerted action.
         Thus, on the one hand, in paragraphs 262 to 272 of the statement of objections, it expressly stated that the brewers had consulted
         on customer allocation in the on-trade sector. On the other hand, it is clear from paragraphs 311 and 312 of the statement
         of objections that the objections set out concerned, among other things, customer allocation between the brewers.
      
      231    In the light of the foregoing, the first plea cannot be upheld.
      
       The sixth plea, alleging a breach of essential procedural requirements, the principle of sound administration and the rights
            of defence of the applicant, consisting in the refusal to grant access to a document in the file and to the replies to the
            statement of objections of the other undertakings concerned
       Arguments of the parties
      232    Firstly, the applicant complains that the Commission refused it access to the replies to the statement of objections of the
         other parties involved in the procedure, thus affecting its rights of defence. It claims, inter alia, that those replies would
         have enabled it to rely on other exculpatory evidence in support of the conclusion that the brewers never took concerted action
         on the Dutch beer market. In addition, it claims that, in recital 203 to the contested decision, the Commission used as evidence
         against it a section of the reply from Heineken in which Heineken acknowledged the existence of discussions on the price of
         cask beer, even though that section was not communicated to it.
      
      233    Secondly, the applicant argues that the Commission refused it access to a document in the file which was relevant to its defence,
         thereby infringing Article 27(2) of Regulation No 1/2003. It states, in particular, that it did not have access to the summary
         of the number of customers in the on-trade sector that the brewers gained and lost in the period between 1997 and 2001. Contrary
         to the claims made by the Commission, it takes the view that that information was not confidential and that, with that document,
         it could have shown that there were constant changes in the on-trade sector of the Dutch beer market, demonstrating vigorous
         competition between the brewers.
      
      234    The Commission contests the applicant’s arguments.
      
       Findings of the Court
      235    Under Article 27(2) of Regulation No 1/2003, ‘[t]he rights of defence of the parties concerned shall be fully respected in
         the proceedings [; t]hey shall be entitled to have access to the Commission’s file, subject to the legitimate interest of
         undertakings in the protection of their business secrets ...’.
      
      236    According to settled case-law, the right of access to the file, which is a corollary of the principle of respect for the rights
         of the defence, means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents
         in the investigation file that may be relevant for its defence (see, to that effect, Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraphs 125 to 128, and Case T‑30/91 Solvay v Commission [1995] ECR II‑1775, paragraph 81).
      
      237    Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings,
         the internal documents of the Commission or other confidential information are involved (Aalborg Portland and Others v Commission, cited in paragraph 41 above, paragraph 68).
      
      238    As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence
         only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning
         the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is
         thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been
         different if that uncommunicated document had to be disallowed as evidence (Aalborg Portland and Others v Commission, cited in paragraph 41 above, paragraphs 71 to 73).
      
      239    By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its
         non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s
         decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its
         defence (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 318, and Hercules Chemicals v Commission, cited in paragraph 34 above, paragraph 81), by showing, in particular, that it would have been able to invoke evidence which
         was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have
         had an influence, in any way at all, on its assessments in the decision (Aalborg Portland and Others v Commission, cited in paragraph 41 above, paragraph 75).
      
      240    In connection with this plea, the applicant claims that it did not have access, first, to the replies to the statement of
         objections given by other undertakings concerned and, second, to a document in the file which was considered to be confidential
         by the Commission.
      
      –       The replies of the other undertakings to the statement of objections
      241    It should be pointed out that the statement of objections is a document whose aim is to delimit the scope of the procedure
         initiated against an undertaking and to ensure that the rights of the defence may be exercised effectively (see Case T‑69/04
         Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 80 and the case-law cited).
      
      242    It is from that aspect that the statement of objections is subject to procedural safeguards, pursuant to the principle of
         respect for the rights of the defence, one of which is the right of access to documents in the Commission’s file.
      
      243    The replies to the statement of objections are not part of the investigation file proper (Cimenteries CBR and Others v Commission, cited in paragraph 226 above, paragraph 380).
      
      244    Since they are documents which are not part of the file compiled at the time of notification of the statement of objections,
         the Commission is required to disclose those replies to other parties involved only if it transpires that they contain new
         incriminating or exculpatory evidence. 
      
      245    Similarly, under paragraph 27 of the Commission notice on the rules for access to the Commission file in cases pursuant to
         Articles 81 [EC] and 82 [EC], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005
         C 325, p. 7), as a general rule, the parties do not have access to the replies to the statement of objections of the other
         parties involved in the investigation. A party is granted access to such documents only where they may constitute new evidence,
         whether of an incriminating or of an exculpatory nature, pertaining to the allegations concerning that party in the Commission’s
         statement of objections.
      
      246    In this respect, concerning, first, new incriminating evidence, it is settled case-law that, if the Commission wishes to rely
         on evidence from a reply to a statement of objections in order to prove the existence of an infringement, the other undertakings
         involved in that proceeding must be placed in a position in which they can express their views on such new evidence (Cimenteries CBR and Others v Commission, cited in paragraph 226 above, paragraph 386, and Case T-314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 50).
      
      247    In the present case, the applicant claims that, in recital 203 to the contested decision, the Commission used as evidence
         against it a section of the reply from Heineken in which Heineken acknowledged the existence of discussions on the price of
         cask beer, even though that section was not communicated to it. 
      
      248    It should be noted that, in the recital mentioned, the Commission states, in response to the arguments raised by the applicant
         and by Heineken, that the existence of unlawful discussions at the meeting held on 8 January 1999 is clear from the evidence
         previously set out, namely the statement by InBev and the notes made by representatives of Grolsch and of the applicant. In
         this regard, although the Commission adds that Heineken itself acknowledged the existence of discussions on prices, ‘with
         certain reservations’, in its reply to the statement of objections, this latter statement is only an accessory element in
         a body of evidence relied on by the Commission in relation to the meeting in question, since it cannot constitute new incriminating
         evidence against the applicant.
      
      249    Second, as regards new exculpatory evidence, according to the case-law, the Commission is not obliged to make it available
         of its own initiative. If, during the administrative procedure, the Commission has rejected an applicant’s request for access
         to documents which are not in the investigation file, an infringement of the rights of the defence may be found only if it
         is proved that the outcome of the administrative procedure might have been different if the applicant had had access to the
         documents in question during that procedure (Cimenteries CBR and Others v Commission, cited in paragraph 226 above, paragraph 383).
      
      250    In so far as an applicant relies on the existence of the alleged exculpatory evidence in replies which have not been disclosed,
         it is for the applicant to provide prima facie evidence of the relevance of those documents for its defence.
      
      251    An applicant must, in particular, indicate the potential exculpatory evidence in question or adduce evidence that it exists
         and therefore of its relevance for the purposes of the case (see, to that effect, Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 351 to 359).
      
      252    In the present case, the applicant claims that the replies of the other parties involved in the proceedings would have enabled
         it to rely on other exculpatory evidence in support of the conclusion that the brewers never took concerted action on the
         Dutch beer market. 
      
      253    In so far as the applicant claims that, in their replies to the statement of objections, the other undertakings also put forward
         arguments contesting the infringement, it should be pointed out that this is not sufficient in itself to regard those arguments
         as exculpatory evidence (see, to that effect, Jungbunzlauer v Commission, cited in paragraph 251 above, paragraphs 353 and 355).
      
      254    In the light of the foregoing, the applicant has not indicated new incriminatory or exculpatory evidence which could be adduced
         by the replies relied on in the statement of objections.
      
      255    Consequently, the complaint alleging a refusal to grant access to those replies must be rejected.
      
      –       The allegedly confidential document
      256    The applicant criticises the refusal to grant access to the list of customers in the on-trade sector which the different brewers
         gained and lost in the period between 1997 and 2001, which was part of the case‑file. It considers that access to that information
         was essential for its defence on the ground that it could have shown that there were constant changes in the on-trade sector
         in the Netherlands and that the Commission’s conclusion that competition was restricted in that sector was incorrect.
      
      257    However, even though there is no need to determine whether the Commission was right to regard the requested information as
         confidential, it should be pointed out that the applicant has not shown that the list of customers in question could have
         been useful for its defence.
      
      258    According to recital 259 to the contested decision, the Commission’s conclusion concerning the applicant’s participation in
         customer allocation in the on-trade sector is based on a Heineken internal letter which concerns an interview with a member
         of the applicant’s board of directors, the text of which is reproduced in recital 184 and interpreted in recitals 187 to 189
         to the contested decision. The information concerning the customers gained and lost by the brewers in the period in question
         cannot, in any event, be considered likely to provide exculpatory evidence with regard to that finding.
      
      259    Consequently, the complaint alleging a refusal to grant access to the document comprising a list of customers in the on-trade
         sector and the present plea in its entirety must be rejected as unfounded.
      
       The fourth plea, alleging an infringement of Article 23 of Regulation No 1/2003 and of the Guidelines and breaches of the
            principles of proportionality and equal treatment in determining the amount of the fine
       Arguments of the parties
      260    Firstly, the applicant disputes the way in which the Commission calculated the amount of the fine, and specifically its analysis
         of the gravity of the infringement. In particular, it considers that, since in the contested decision the Commission softened
         the very serious criticisms that it had made in the statement of objections, it should have categorised the infringement as
         much less serious. In addition, the applicant criticises the Commission for failing to take into account, in assessing the
         gravity of the infringement, that it did not have any impact on the Dutch beer market. The applicant also takes the view that,
         contrary to the statements made in recital 452 to the contested decision, the effect of the infringement on the market can
         be measured.
      
      261    Secondly, the applicant considers that the Commission breached the principle of equal treatment by departing considerably
         from its previous decision-making practice and, in particular, the fines imposed under its Decision 2003/569, its Decision
         2002/759/EC of 5 December 2001 relating to a proceeding under Article 81 [EC] (Case COMP/37.800/F3 – Luxembourg brewers) (OJ
         2002 L 253, p. 21), and its Decision 2005/503/EC of 29 September 2004 relating to a proceeding under Article 81 [EC] (Case
         COMP/C.37.750/B2 – Brasseries Kronenbourg – Brasseries Heineken) (OJ 2005 L 184, p. 57).
      
      262    Thirdly, the applicant submits that the Commission breached the principles of proportionality and equal treatment in so far
         as the fine was disproportionate in comparison with the fines imposed on Heineken and on Grolsch. In essence, the applicant
         points out that the Commission attached disproportionate importance to its turnover in determining the fine, which seriously
         distorted the balance of power between the brewers and the position it holds on the market in question. Moreover, it considers
         that, in determining the starting amount of the fine, the Commission should have taken into account its turnover without including
         excise duties.
      
      263    The Commission contests the applicant’s arguments.
      
       Findings of the Court
      264    It should be noted as a preliminary point that, under Article 23(2) of Regulation No 1/2003, the Commission may by decision
         impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article
         81 EC. Under that same provision, for each undertaking and association of undertakings participating in the infringement,
         the fine may not exceed 10% of its total turnover in the preceding business year.
      
      265    Moreover, according to settled case-law, the Commission enjoys a broad discretion as regards the method for calculating fines.
         That method, set out in the Guidelines, displays flexibility in a number of ways, enabling the Commission to exercise its
         discretion in accordance with Regulation No 1/2003 (see, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P
         Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 112). 
      
      266    In addition, in areas such as determining the amount of a fine under Regulation No 1/2003, where the Commission has such a
         discretion, review of the legality of its assessments is limited to determining the absence of manifest error of assessment
         (see, to that effect, Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 79).
      
      267    The discretion enjoyed by the Commission and the limits which it has imposed in that regard have no bearing, however, on the
         exercise by the EU judicature of its unlimited jurisdiction (JFE Engineering and Others v Commission, cited in paragraph 40 above, paragraph 538), which empowers it to annul, reduce or increase the fine imposed by the Commission
         (see, to that effect, Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraphs 60 to 62).
      
      268    The present plea essentially comprises three limbs, alleging, first, an erroneous assessment of the gravity of the infringement,
         second, a breach of the principle of equal treatment in the light of the Commission’s previous decision-making practice and,
         third, a breach of the principle of equal treatment and the principle of proportionality in the light of the fines imposed
         on the other addressees of the contested decision.
      
      –       The first limb, alleging an erroneous assessment of the gravity of the infringement
      269    Under Article 23(3) of Regulation No 1/2003, in order to determine the amount of the fine, it is necessary to take into consideration
         the gravity and duration of the infringement. 
      
      270    According to settled case-law, the gravity of an infringement is assessed in the light of numerous factors, such as the particular
         circumstances of the case, its context and the deterrent effect of fines, in respect of which the Commission has a margin
         of discretion (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 241, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 91). 
      
      271    In particular, according to the first paragraph of Section 1.A of the Guidelines, in assessing the gravity of the infringement,
         account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant
         geographic market.
      
      272    In the exercise of its unlimited jurisdiction, the Court must nevertheless consider whether the amount of the fine imposed
         is proportionate to the gravity of the infringement and must weigh the seriousness of the infringement with the circumstances
         invoked by the applicant (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 136).
      
      273    The applicant put forwards two arguments seeking to call into question the determination by the Commission of the gravity
         of the infringement.
      
      274    Firstly, it objects to the categorisation of the infringement as very serious, stating that, in the contested decision, the
         Commission abandoned several aspects of the infringement compared with the statement of objections.
      
      275    It is also important to bear in mind that very serious infringements within the meaning of the third indent of the second
         paragraph of Section 1.A of the Guidelines are ‘generally horizontal restrictions such as price cartels and market‑sharing
         quotas’.
      
      276    Furthermore, it is settled case-law that agreements of this kind constitute one of the most serious forms of damage to competition,
         in that their aim is quite simply to eliminate competition between the undertakings which implement them, and therefore run
         counter to the fundamental objectives of the EU (see, to that effect, Groupe Danone v Commission, cited in paragraph 272 above, paragraph 147 and the case-law cited).
      
      277    However, since the Commission rightly found that the applicant had participated in an infringement consisting in a complex
         of agreements and/or concerted practices the object of which was to restrict competition within the common market, in particular
         by coordinating prices and price increases and by customer allocation, the applicant’s argument that the infringement could
         not be regarded as very serious cannot be accepted.
      
      278    The finding made in recital 442 to the contested decision, according to which the infringement in the present case, by its
         very nature, had to be categorised as very serious in accordance with the Guidelines, is not therefore vitiated by error.
         This conclusion cannot be rebutted by the fact that certain aspects of the infringement highlighted in the statement of objections
         were not accepted in the contested decision, in so far as that decision set outs the evidence to justify categorisation of
         the infringement as very serious.
      
      279    Secondly, the applicant criticises the Commission for its conclusion that the impact of the cartel on the market could not
         be measured and for failing to take into account the evidence from the file which showed that the infringement did not have
         any impact on the market.
      
      280    It should be pointed out that, while the existence of an actual impact of the infringement on the market is a factor to be
         taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of
         the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1.A of
         the Guidelines that that impact is to be taken into account only where this can be measured.
      
      281    Furthermore, the Commission may classify horizontal price or market‑sharing agreements, such as the infringement in question
         in the present case, as very serious infringements solely on account of their nature, without being required to demonstrate
         an actual impact of the infringement on the market. The actual impact of the infringement is only one among a number of factors
         which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely
         amount of EUR 20 million (Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraphs 74 and 75).
      
      282    In the present case, in recital 452 to the contested decision, the Commission states as follows:
      
      ‘In this procedure, it is impossible to measure the actual effect on the Netherlands market of the complex of agreements comprising
         the infringement and the Commission does not therefore rely on a particular impact, in accordance with the Guidelines, which
         state that account must be taken of the actual impact, where this can be measured ... Consequently, the Commission will not
         take into account the impact on the market in determining the applicable fines in the present case.’
      
      283    In addition, in recital 455 to the contested decision, which sets out its conclusion on the gravity of the infringement, the
         Commission states:
      
      ‘In view of the nature of the infringement and the fact that it extended to the entire territory of the Netherlands, the undertakings
         to which the present decision is addressed have committed a very serious infringement of Article 81 [EC].’
      
      284    It is clear from these passages that, in determining the gravity of the infringement, the Commission did not rely on the actual
         impact of the infringement, but on the nature of the infringement and on the extent of the geographic market in question.
         
      
      285    In this regard, in view of the nature of the infringement established, the object of which was, among other things, coordination
         of prices and price increases and occasional coordination of customer allocation, the Commission could legitimately refrain
         from taking into consideration the impact of the infringement on the market.
      
      286    Accordingly, in categorising the infringement in question as very serious, the Commission did not depart from its Guidelines
         and did not breach the principles invoked by the applicant. 
      
      287    Consequently, the applicant’s arguments alleging that the cartel did not have any impact on the market and the present limb
         in its entirety must be rejected as unfounded. 
      
      –       The second limb, alleging a breach of the principle of equal treatment in the light of the Commission’s previous decision-making
         practice
      
      288    It should first be pointed out that the Commission’s practice in previous decisions does not itself serve as a legal framework
         for the fines imposed in competition matters (Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 292) and that, within the framework of Regulation No 17 and of Regulation No 1/2003, the Commission
         has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards
         compliance with the competition rules (Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 216) and that it may at any time adjust the level of fines to the needs of that policy (Dansk Rørindustri and Others v Commission, cited in paragraph 270 above, paragraph 169).
      
      289    In the present case, as has already been stated above, the amount of the fine imposed on the applicant was determined, in
         accordance with Article 23(3) of Regulation No 1/2003, having regard to the gravity and the duration of the infringement.
         In this respect, the applicant cannot derive a legitimate argument solely from the fact that, in its previous decision-making
         practice, the Commission has penalised similar conduct by imposing lower fines than the fine imposed in the present case.
      
      290    In these circumstances, the applicant also cannot claim a breach of the principle of equal treatment. The Court of Justice
         has repeatedly held that the Commission’s practice in previous decisions does not itself serve as a legal framework for the
         fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining
         whether there is discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned,
         are not likely to be the same (see Erste Group Bank and Others v Commission, cited in paragraph 270 above, paragraph 233 and the case‑law cited).
      
      291    In the present case, with regard to the applicant’s arguments invoking the level of the fines imposed by the three previous
         Decisions 2003/569, 2002/759 and 2005/503, it should first be noted that, unlike the contested decision, in which the Commission
         categorised the infringement in question as ‘very serious’, in Decisions 2002/759 and 2005/503 it held that the infringements
         were ‘serious’. The applicant cannot therefore validly rely on those decisions in order to claim alleged discriminatory treatment
         against it.
      
      292    With regard to Decision 2003/569, the applicant infers the existence of a breach of the principle of equal treatment from
         the fact that the fines imposed on the Belgian brewers involved were much lower than the fines imposed by the contested decision,
         whilst neither the nature of the infringements nor the conditions on the markets concerned had differences justifying that
         disparity.
      
      293    It should be noted, in this regard, that the Commission assesses the gravity of infringements by reference to numerous factors,
         which are not based on a binding or exhaustive list of the criteria which must be applied and it is not, moreover, bound to
         apply a precise mathematical formula, either for the total amount of the fine or where it is broken down into different elements
         (see Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraphs 187 and 188 and the case‑law cited).
      
      294    In these circumstances, a direct comparison of the fines imposed on the addressees of the two decisions concerning distinct
         infringements is likely to distort the specific functions performed by the different stages in the calculation of a fine.
         The final amounts of the fines reflect the specific circumstances of each cartel and the particular evaluations in the case
         at issue.
      
      295    In the light of all the foregoing, as regards the level of the fines imposed, the applicant’s situation cannot be compared
         to the situation of the undertakings concerned in the previous decisions relied on.
      
      296    In the light of these considerations, the complaint alleging a breach of the principle of equal treatment in the light of
         the Commission’s previous decision‑making practice must be rejected. 
      
      –       The third limb, alleging a breach of the principle of equal treatment and the principle of proportionality in the light of
         the fines imposed on the other participants in the cartel at issue
      
      297    By the present limb, the applicant essentially disputes the Commission’s assessment relating to the determination of the starting
         amounts of the fines in the context of the differential treatment applied by the Commission (recital 462 to the contested
         decision). 
      
      298    In this regard, it should be noted that, under the Guidelines, where there are infringements involving a number of undertakings,
         the Commission may, as it did in this case, weight the starting amounts to take account of the specific weight of each undertaking
         by dividing the members of the cartel into groups ‘particularly where there is considerable disparity between the sizes of
         the undertakings committing infringements of the same type’ (sixth paragraph of Section 1.A of the Guidelines). The Guidelines
         further state that ‘the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different
         fines being imposed on the undertakings concerned without this differentiation being governed by arithmetic calculation’ (seventh
         paragraph of Section 1.A of the Guidelines).
      
      299    In accordance with settled case-law, in determining the gravity of the infringement, the Commission is not required to ensure,
         where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines
         resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall
         turnover. However, it may divide them into groups (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 385, and Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraph 57). 
      
      300    However, a division of the undertakings concerned by categories must comply with the principle of equal treatment, according
         to which it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment
         is objectively justified. Moreover, according to the case-law, the amount of the fines must, at least, be proportionate in
         relation to the factors that entered into the assessment of the seriousness of the infringement (Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 124).
      
      301    In the present case, in order to define the categories for dividing up the undertakings concerned, it should be noted that,
         as is clear from recitals 457 and 458 to the contested decision, the Commission opted to take into consideration their relative
         weight on the market in question on the basis of a single criterion, beer sales in the Netherlands in the last full calendar
         year of the infringement, namely 1998. 
      
      302    On that basis, the Commission established three categories of undertakings. The first category comprised Heineken, which made
         beer sales in the Netherlands of EUR 450 to 480 million. The second category comprised Grolsch and InBev, which made sales
         in the Netherlands of EUR 150 to 180 million. The applicant was placed in the third category, with sales in the Netherlands
         amounting to between EUR 100 and 130 million. The amounts of the fines established for each category were, respectively, EUR 65 000 000,
         EUR 25 000 000 and EUR 17 000 000. 
      
      303    By acting in this way, the Commission opted for a coherent method of dividing the members of the cartel into three categories
         which is objectively justified by the difference between the market shares held by each of the undertakings in those three
         categories (see, to that effect, Tokai Carbon and Others v Commission, cited in paragraph 288 above, paragraph 220). Furthermore, in doing so, the Commission clearly did not depart from the normal
         method laid down in the Guidelines. In addition, whilst the applicant takes the view that, among the undertakings involved
         in the cartel, it occupies the weakest position, its inclusion in the third category obviously reflects this consideration.
      
      304    With regard to the applicant’s argument that consideration of turnover alone did not reflect precisely the economic capacity
         of the undertakings to damage competition on the Dutch beer market, it should be pointed out that, despite its approximate
         nature, turnover is regarded as an adequate criterion, in competition law, for assessing the size and the economic power of
         the undertakings concerned (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121). 
      
      305    Since that criterion was properly applied in the present case, there is nothing to suggest that the principle of equal treatment
         and the principle of proportionality were breached in relation to the starting amount of the fine. 
      
      306    With regard to the applicant’s objection to the use of turnover including excise duties for the calculation of the individual
         basic amounts, it should be emphasised that, in so far as that calculation involved the relative weighting of the other participants
         in the cartel on that market, the non-inclusion of taxes or excise duties would not have altered the Commission’s final conclusion.
         Only if the Commission had calculated the individual basic amounts of the other parties involved on the basis of turnover
         not including excise duties could there be a breach of the principle of equal treatment. 
      
      307    Consequently, since the applicant has failed to show that the Commission breached the principle of equal treatment and the
         principle of proportionality in the differential treatment, the present limb must be rejected as unfounded.
      
      308    In the light of all the foregoing, the fourth plea must be rejected in its entirety.
      
       The fifth plea, alleging the excessive length of the administrative procedure
       Arguments of the parties
      309    The applicant claims, firstly, that the excessive length of the administrative procedure affected its rights of defence. It
         argues inter alia that, despite the inspections conducted by the Commission in 2000 and the applicant’s replies to the requests
         for information, the information relating to each meeting was not clarified in such a way that, from that time, it could have
         questioned the managers involved. 
      
      310    The applicant also submits that the excessive length of the administrative procedure resulted in a disproportionate fine,
         since the Commission’s policy on the level of fines became stricter in the meantime.
      
      311    Secondly, it claims that the reduction of the fine by EUR 100 000 on account of the excessive length of the procedure is too
         low and disproportionate in relation to the total length of the procedure.
      
      312    The Commission states that, in recitals 497 to 500 to the contested decision, it expressly recognised that the length of the
         procedure was excessive and that it had therefore granted an exceptional reduction of the fine imposed on the applicant. 
      
      313    In addition, the Commission points out that, although compliance with the reasonable time requirement in the conduct of administrative
         procedures is recognised in settled case-law, failure to adjudicate within that time can justify the annulment of a decision
         establishing an infringement only where it is shown that the breach of that principle adversely affects the rights of defence
         of the undertakings concerned.
      
      314    In this regard, the Commission claims that the inspection decision of 17 March 2000 sent to the applicant made it aware of
         the major part of the infringement and the markets and the period to which it related. According to the Commission, that decision
         made reference to anti-competitive practices consisting in price fixing, the allocation of markets and/or the exchange of
         information in the Dutch beer sector, in both the retail trade market and the on-trade market. The applicant’s argument cannot
         be valid because of the detailed nature of the questions which the Commission sent it from 2001.
      
      315    Lastly, the Commission contests the applicant’s argument that the reduction of the amount of the fine on account of the excessive
         length of the procedure is not proportionate. It considers that it has a broad margin of discretion in this regard and that
         the possibility of granting such a reduction on its own initiative falls within its powers. Furthermore, the Commission points
         out that the length of the administrative procedure conducted in the present case was shorter than in other previous cases
         in which it nevertheless applied the same reduction.
      
       Findings of the Court
      316    According to settled case-law, compliance with the reasonable time requirement in the conduct of administrative procedures
         relating to competition policy constitutes a general principle of EU law whose observance the EU judicature ensures (Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 239 above, paragraphs 167 to 171, and Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 40). 
      
      317    For the purposes of the application of that principle, a distinction must be drawn between the two stages of the administrative
         procedure, namely the investigation stage preceding the statement of objections and the stage corresponding to the remainder
         of the administrative procedure, each corresponding to its own internal logic (Technische Unie v Commission, cited in paragraph 316 above, paragraph 42). 
      
      318    The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission
         takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course
         which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption
         of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (Technische Unie v Commission, cited in paragraph 316 above, paragraph 43).
      
      –       The length of the administrative procedure
      319    In the present case, it should first be noted that, in recital 498 to the contested decision, the Commission acknowledged
         that the length of the administrative procedure had been excessive and that this fact was attributable to it.
      
      320    As regards the first stage of the administrative procedure, from the notification of the applicant of the inspection decision
         in March 2000 until the receipt of the statement of objections in August 2005, a period of 65 months elapsed.
      
      321    Since the inspections during the investigation were conducted in March and April 2000, the total length of that stage of the
         administrative procedure cannot be justified solely on the ground that the Commission sent the parties a series of requests
         for information between 2001 and 2005.
      
      322    Thus, in the absence of further explanation or information from the Commission regarding the measures of inquiry undertaken
         during that period, the length of the first stage of the procedure must be regarded as excessive (see, to that effect, Joined
         Cases T‑5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II‑5761, paragraph 77).
      
      323    The second stage of the administrative procedure, from the receipt of the statement of objections to the adoption of the contested
         decision in April 2007, lasted 20 months, thus exceeding, in the absence of further explanation, the time normally needed
         for the adoption of the decision.
      
      324    Consequently, it should be held that the length of the administrative procedure in question was excessive and stemmed from
         inaction on the part of the Commission, resulting in a breach of the reasonable time principle.
      
      –       The effect on the lawfulness of the contested decision
      325    It is settled case-law that a finding that there has been a breach of the reasonable time principle may result in the annulment
         of a decision establishing an infringement only where the length of the proceedings affected their outcome (see, to that effect,
         Technische Unie v Commission, cited in paragraph 316 above, paragraph 48 and the case‑law cited). 
      
      326    In the present case, the applicant claims that the excessive length of the first stage of the administrative procedure impaired
         its rights of defence, inevitably affecting the outcome of the procedure.
      
      327    It claims, in essence, that its possibilities of defending itself effectively against the allegations made in the statement
         of objections were undermined in so far as, until the receipt of that statement on 30 August 2005, it was not able to identify
         precisely the subject-matter of the investigation conducted by the Commission. According to the applicant, when it had the
         opportunity to reply to the objections, nearly 10 years had passed since the alleged conduct, which undermined its possibilities
         of collecting exculpatory evidence relating to the off-trade segment on account of the departure of some of its employees
         who had direct knowledge of the alleged facts.
      
      328    It should be stated in this regard that the applicant wrongly claims that it was not able to identify precisely the subject-matter
         of the investigation until the statement of objections.
      
      329    First of all, the inspection decision, sent to the applicant on 17 March 2000, stated that the Commission’s investigation
         related to specific anti‑competitive practices such as ‘price fixing, the allocation of markets and/or the exchange of information
         in the Dutch beer sector, in both the retail trade market and the on-trade market’. Second, the requests for information sent
         to the applicant in October 2001 specified the types of meetings, the dates and the locations being investigated by the Commission.
      
      330    Contrary to the claims made by the applicant, those statements made it aware, with sufficient precision, of the subject-matter
         of the investigation, the infringements with which it could be charged and the market segments concerned, and therefore put
         it in a position to identify and collect any exculpatory evidence. 
      
      331    Moreover, even though the applicant makes an argument alleging difficulties in collecting certain exculpatory evidence, it
         failed to support that claim with specific evidence and, in particular, failed to specify the date on which the employees
         in question left the undertaking, the reasons why it would have been crucial to obtain information from those persons in order
         to exercise its rights of defence, and the circumstances because of which it was no longer possible to obtain information
         from them (see, to that effect, Technische Unie v Commission, cited in paragraph 316 above, paragraph 64).
      
      332    In these circumstances, the applicant’s claim that it was not informed, from the beginning of the investigation, of the subject-matter
         of the investigation or of any objections raised by the Commission, with the result that it was not able to prepare its defence
         or gather the exculpatory evidence available to it, cannot be accepted.
      
      333    In the light of the foregoing, it should be stated that the applicant has not demonstrated the existence of an impairment
         of its rights of defence as a result of the excessive length of the administrative procedure.
      
      334    Lastly, the applicant’s argument that the penalty imposed on it would have been lower if the Commission had concluded the
         administrative procedure earlier must also be rejected. 
      
      335    Although the Commission acknowledged, at the hearing, that it increased the general level of fines around 2005, that is during
         the administrative procedure in question, this fact cannot be taken into consideration in assessing the effect of the length
         of the procedure on the content of the contested decision. It need only be noted in this regard that the fact that the Commission,
         in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising
         that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of competition
         policy. On the contrary, the proper application of the competition rules requires that the Commission may at any time adjust
         the level of fines to the needs of that policy (Musique Diffusion française and Others v Commission, cited in paragraph 304 above, paragraph 109, and Dansk Rørindustri and Others v Commission, cited in paragraph 270 above, paragraph 169).
      
      336    Consequently, since there is no effect on the outcome of the procedure in question, the failure to respect the reasonable
         time principle cannot result in the annulment of the contested decision. 
      
      –       The reduction of the fine
      337    With regard to the applicant’s argument concerning the allegedly too small reduction of the fine granted by the Commission
         by reason of the excessive length of the procedure, it should be noted that a procedural irregularity, even though it is not
         capable of resulting in the annulment of the decision, may justify a reduction of the fine (see, to that effect, Baustahlgewebe v Commission, cited in paragraph 38 above, paragraphs 26 to 48, and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission, cited in paragraph 322 above, paragraphs 436 to 438).
      
      338    Failure to adjudicate within a reasonable time can justify the Commission’s decision to reduce, in equity, the amount of a
         fine, since the possibility of granting such a reduction falls within the scope of the Commission’s powers (see, to that effect,
         Technische Unie v Commission, cited in paragraph 316 above, paragraphs 202 to 204).
      
      339    In the present case, the Commission decided to grant the applicant a reduction of the fine by reason of the ‘unreasonable’
         length of the administrative procedure (recitals 498 and 499 to the contested decision). 
      
      340    The exercise of that power by the Commission does not prevent the Court, in the exercise of its unlimited jurisdiction, granting
         a further reduction of the amount of the fine.
      
      341    It must be borne in mind that the flat-rate reduction of EUR 100 000 granted by the Commission does not take any account of
         the amount of the fine imposed on the applicant, which amounted to EUR 22 950 000 before that reduction, and does not therefore
         constitute a reduction of the penalty which is likely to give adequate redress for the breach resulting from the failure to
         adjudicate within a reasonable time in the administrative procedure.
      
      342    In this regard, the applicant rightly claims that the consequences of the breach of the reasonable time principle were not
         sufficiently taken into account by the Commission, as regards the reduction of the amount of the fine. 
      
      343    In the light of the circumstances of the case, the Court considers, in the exercise of its unlimited jurisdiction, that, in
         order to grant the applicant fair satisfaction for the excessive length of the procedure, the reduction in question must be
         5% of the amount of the fine.
      
       Conclusion regarding the fine
      344    Following examination of the pleas raised by the applicant and in the exercise of its unlimited jurisdiction, the Court adjusts
         the amount of the fine imposed on the applicant, first by fixing the starting amount at EUR 16 150 000, rather than EUR 17 000 000,
         as a consequence of the annulment of Article 1 of the contested decision in so far as it accepts the aspect of the infringement
         consisting in occasional coordination of commercial conditions, other than prices, offered to individual consumers in the
         on-trade sector in the Netherlands (see paragraphs 191 and 192 above), and second by altering the reduction made by reason
         of the failure to adjudicate within a reasonable time in the procedure to 5% of the final amount of the fine, rather than
         EUR 100 000 (see paragraph 343 above). 
      
      345    As a consequence of that adjustment, the amount of the fine is calculated by increasing the adjusted starting amount by 35%,
         by reason of the duration of the infringement, and by reducing that amount by 5%, by reason of the failure to adjudicate within
         a reasonable time in the procedure. Consequently, the amount of the fine imposed on the applicant is set at EUR 20 712 375.
      
       Costs
      346    Pursuant to Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear
         its own costs where each party succeeds on some and fails on other heads.
      
      347    In the present case, since the form of order sought by the applicant has been upheld in part, the Court will make an equitable
         assessment of the circumstances of the present case in holding that the applicant is to bear two thirds of its own costs and
         to pay two thirds of the costs incurred by the Commission and that the Commission is to bear one third of its own costs and
         to pay one third of the costs incurred by the applicant.
      
      On those grounds,
      THE GENERAL COURT (Sixth Chamber, Extended Composition)
      hereby:
      1.      Annuls Article 1 of Commission Decision C (2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case
            COMP/B/37.766 – Dutch beer market) in so far as the European Commission found in it that Bavaria NV had participated in an
            infringement consisting in occasional coordination of commercial conditions, other than prices, offered to individual consumers
            in the on-trade sector in the Netherlands;
      2.      Sets the amount of the fine imposed on Bavaria in Article 3(c) of Decision C (2007) 1697 at EUR 20 712 375;
      3.      Dismisses the remainder of the action;
      4.      Orders Bavaria to bear two thirds of its own costs and to pay two thirds of the costs incurred by the Commission;
      5.      Orders the Commission to bear one third of its own costs and to pay one third of the costs incurred by Bavaria.
      
               Vadapalas
            
            
                Dittrich 
            
            
               Truchot
            
         Delivered in open court in Luxembourg on 16 June 2011.
      [Signatures]
      Table of contents
      
      Facts
      Administrative procedure
      The contested decision
      The infringement at issue
      The fine imposed on the applicant
      Procedure and forms of order sought
      Law
      The second plea, alleging an infringement of Article 81 EC, disregard for the presumption of innocence, and a breach of the
         principle of legality and of the obligation to state reasons
      
      Arguments of the parties
      Findings of the Court
      – The statement by InBev
      – Other evidence
      – The facts relating to the findings, first, of coordination of prices and price increases for beer and, second, occasional
         coordination of customer allocation
      
      – The facts relating to the finding of occasional coordination of other commercial conditions offered to individual customers
         in the on-trade sector
      
      – The alleged error of law and in the treatment of the facts
      – Conclusion
      The third plea, concerning the duration of the infringement
      Arguments of the parties
      Findings of the Court
      – The determination of the start date of the infringement
      – The determination of the end date of the infringement
      The first plea, alleging a breach of the principle of sound administration
      Arguments of the parties
      Findings of the Court
      The sixth plea, alleging a breach of essential procedural requirements, the principle of sound administration and the rights
         of defence of the applicant, consisting in the refusal to grant access to a document in the file and to the replies to the
         statement of objections of the other undertakings concerned
      
      Arguments of the parties
      Findings of the Court
      – The replies of the other undertakings to the statement of objections
      – The allegedly confidential document
      The fourth plea, alleging an infringement of Article 23 of Regulation No 1/2003 and of the Guidelines and breaches of the
         principles of proportionality and equal treatment in determining the amount of the fine
      
      Arguments of the parties
      Findings of the Court
      – The first limb, alleging an erroneous assessment of the gravity of the infringement
      – The second limb, alleging a breach of the principle of equal treatment in the light of the Commission’s previous decision-making
         practice
      
      – The third limb, alleging a breach of the principle of equal treatment and the principle of proportionality in the light
         of the fines imposed on the other participants in the cartel at issue
      
      The fifth plea, alleging the excessive length of the administrative procedure
      Arguments of the parties
      Findings of the Court
      – The length of the administrative procedure
      – The effect on the lawfulness of the contested decision
      – The reduction of the fine
      Conclusion regarding the fine
      Costs
      * Language of the case: Dutch.