CELEX: C2002/109/119
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-49/02: Action brought on 26 February 2002 by Brasserie Nationale against the Commission of the European Communities

C 109/62                 EN                     Official Journal of the European Communities                                          4.5.2002
Finally, the applicants submit that the objectives of the Council          The applicant claims that the Commission has failed to comply
in the directives cited are not covered by Community law and               with the obligation to provide a statement of reasons as
are therefore a direct cause of the refusal to disclose the                prescribed by Article 253 of the EC Treaty, and with the
accounts, and that the causal link between the objectives of               guidelines for the calculation of fines. According to the
the directive and the damage caused and anticipated is thus                applicant, the Commission, in determining the actual econ-
clear.                                                                     omic power of the parties concerned, failed to define the
                                                                           relevant market. It maintains that the decision does not make
                                                                           it clear whether the relevant market is the private label market
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-              or the beer market in general. Moreover, the Commission
    ordination of safeguards which, for the protection of the interests    over-estimated the economic power of the applicant in the
    of members and others, are required by Member States of                market for private label beer, if and in so far as it is that market
    companies within the meaning of the second paragraph of                which is to be regarded as the relevant market. The applicant
    Article 58 of the Treaty, with a view to making such safeguards        further argues that the Commission wrongly characterised the
    equivalent throughout the Community (OJ, English Special Edition
    1968(I), p. 41).
                                                                           role played by the applicant in the cartel in question as an
(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on           active role. According to the applicant, its role must be
    Article 54 (3) (g) of the Treaty on the annual accounts of certain     regarded as having been purely passive, or at least as less
    types of companies (OJ 1978 L 222, p. 11).                             active.
                                                                           Lastly, the applicant pleads infringement of the Notice on
                                                                           Cooperation and of the principle of equal treatment. According
                                                                           to the applicant, the Commission failed to take sufficient
                                                                           account of the significance of the applicant’s statements
                                                                           proving the infringement of the rules. The Commission
                                                                           consequently treated similar situations in a dissimilar way, by
Action brought on 27 February 2002 by Brouwerij                            not applying the same reduction in the fine where there was a
Haacht N.V. against the Commission of the European                         comparable level of cooperation. Moreover, the Commission
                             Communities                                   treated dissimilar situations in a similar way, by applying the
                                                                           same reduction in the fines imposed on the applicant and on
                            (Case T-48/02)                                 parties who cooperated less, or not at all, in the Commission’s
                                                                           investigation.
                          (2002/C 109/118)
                     (Language of the case: Dutch)
An action against the Commission of the European Communi-                  Action brought on 26 February 2002 by Brasserie Natio-
ties was brought before the Court of First Instance of the                 nale against the Commission of the European Communi-
European Communities on 27 February 2002 by Brouwerij                                                     ties
Haacht N.V., established at Boortmeerbeek (Belgium), rep-
resented by Yves van Gerven, Frédéric Louis and Hendrik                                             (Case T-49/02)
Viane, lawyers, with an address for service in Luxembourg.
                                                                                                  (2002/C 109/119)
The applicant claims that the Court should:
                                                                                             (Language of the case: French)
—     annul Article 4 of the decision in issue, in so far as it
      concerns Brouwerij Haacht N.V. and, in so far as may be
      necessary, order that no fine be imposed on Brouwerij
      Haacht N.V. or substantially reduce the fine;                        An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
—     order the Commission to pay the costs in any event.                  European Communities on 26 February 2002 by Brasserie
                                                                           Nationale, established at Bascharage (Luxembourg), represent-
                                                                           ed by Alexandre Carnelutti and Jean-Louis Schiltz, lawyers,
                                                                           with an address for service in Luxembourg.
Pleas in law and main arguments
                                                                           The applicant claims that the Court should:
The action is directed against the decision in so far as it
imposes a fine on the applicant in consequence of the private              —     annul Article 1 of the Commission’s decision of 5 Decem-
label cartel on the Belgian beer market.                                         ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
 ---pagebreak--- 4.5.2002               EN                    Official Journal of the European Communities                                       C 109/63
      bourgeoises, in so far as it finds that the applicant has         —     The Commission committed an error of fact in taking the
      infringed Article 81(1) of the Treaty;                                  view that the purpose of the agreement was to prevent
                                                                              penetration of the market by foreign brewers and that it
                                                                              significantly affected competition.
—     in any event, annul Article 2 of the decision in so far as it
      imposes a fine on the applicant, alternatively, reduce that
      fine substantially;
                                                                        The applicant stresses that the agreement was concluded on
                                                                        account of an abnormal risk situation created by a situation
—     order the Commission to pay the costs.                            under national law in which fair competition was directly
                                                                        threatened. Consequently, limited cooperation between brew-
                                                                        ers, proportionate to the objective pursued, became the only
                                                                        way of ensuring that the ‘beer clauses’ were safeguarded.
Pleas in law and main arguments                                         As regards the amount of the fines, the applicant pleads
                                                                        infringement of Article 15(2) of Regulation No 17 and non-
                                                                        compliance with the obligation to provide a statement of
                                                                        reasons.
The present application is directed against the Commission’s
decision establishing the existence of a cartel set up by an
agreement signed on 8 October 1985 between five Luxem-
bourg breweries, including the applicant, with a view to
ensuring observance of exclusivity clauses, known as ‘beer
clauses’, which are characteristic of contracts concluded
between brewers and operators in the hotels/restaurants/cafés
(HORECA) sector, both in Luxembourg and throughout the
Community. The object of that agreement was allegedly to
enable the parties thereto to retain their respective customers         Action brought on 26 February 2002 by Brasserie Battin
in the Luxembourg HORECA sector and to prevent foreign                    against the Commission of the European Communities
brewers from penetrating that sector.
                                                                                                  (Case T-51/02)
In support of its claims, the applicant puts forward the
following pleas in law:                                                                         (2002/C 109/120)
—     The Commission committed an error of law by omitting,                                (Language of the case: French)
      and refusing to consider itself obliged, to take account of
      the economic context of which the agreement formed
      part when carrying out its assessment of all of the clauses
      examined by it, and thus of the purpose of the agreement
      in question.                                                      An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 26 February 2002 by Brasserie
—     The Commission committed an error in its analysis of              Battin, established at Esch sur Alzette (Luxembourg), represent-
      the scope of the said agreement, by finding that it applied       ed by Alexandre Carnelutti and Marie Santini, lawyers, with an
      in the absence of a supply contract or beer clause, and           address for service in Luxembourg.
      thus committed an error of assessment, inasmuch as it
      based its negative assessment of the agreement on that
      presumed scope.                                                   The applicant claims that the Court should:
—     The Commission committed an error of assessment in                —     annul Article 1 of the Commission’s decision of 5 Decem-
      characterising the agreement as an agreement by the                     ber 2001 in Case COMP/37800/F3 — Brasseries Luxem-
      contracting parties to retain their respective customers.               bourgeoises, in so far as it finds that the applicant has
      In actual fact, its central and sole purpose was to                     infringed Article 81(1) of the Treaty;
      ensure observance of the contractual exclusivity agreed
      to between retailers and brewers. The agreement in                —     in any event, annul Article 2 of the decision in so far as it
      question was therefore intended solely to constitute a
                                                                              imposes a fine on the applicant, or alternatively reduce
      legitimate instrument of horizontal cooperation aimed at
                                                                              that fine substantially;
      guaranteeing compliance with a decisive element affecting
      the economy, development and fair competition in that
      sector.                                                           —     order the Commission to pay the costs.