Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The Oberlandesgericht (Higher Regional Court) Frankfurt am Main has referred the following questions to the Court for a preliminary ruling under the third paragraph of Article 177 of the EEC Treaty:
"A
1. Can an individual beer supply agreement containing an exclusive purchasing clause, such as the agreement between the parties, be such as to affect, to an appreciable degree, trade between Member States within the meaning of Article 85(1) of the EEC Treaty because it forms part of a 'bundle' of similar beer supply agreements in that Member State - no matter which brewery is involved - and the capacity to produce adverse effects on trade between States is to be assessed according to the effects on the market of that 'bundle of agreements' ?
2. If Question 1 is answered in the affirmative:
How high must the proportion of tied outlets in a Member State be for there to exist an appreciable effect on international trade; would the figure of some 60% accepted by the Commission of the European Communities for the proportion of tied outlets in the Federal Republic of Germany be sufficient for that purpose?
3. If Question 1 is answered in the negative:
Are the cumulative effects on the market of the totality of the beer supply agreements in the Federal Republic of Germany involving exclusive ties and/or the contributory role of the extant network of agreements to be ascertained by a comprehensive examination of the respective circumstances; if so, what are the criteria for such an examination and does special importance attach to any of the following factors:
- the size of the brewery making the tied-outlet agreement,
- the volume of trade affected by a single agreement,
- the volume of trade covered by the whole 'bundle' of agreements,
- the number of existing agreements, their duration, the volume of goods affected and their importance in comparison with the trade of sellers not subject to such ties,
- the contractual commitment imposed on the publican by the brewery, the drinks supplier or the landlord in the tenancy agreement,
- the volume of supplies to premises used for the sale and consumption of drinks, by independent wholesalers not subject to ties,
- the extent of ties to foreign producers,
- the density of tied outlets in particular geographical areas,
- a comparison with sales outside premises for the sale and consumption of drinks, and sales trends in this field,
- the possibility of setting up or purchasing new outlets?
4. If Question 1 or Question 3 is answered in the affirmative:
Is a beer-purchasing agreement which explicitly leaves the publican at liberty to purchase beer from other Member States (an 'access clause' ) in principle incapable of affecting trade between Member States or does the answer depend partly on whether - and to what extent - a minimum supply is agreed and on the rights (as to damages, notice of termination, etc.) accruing to the brewery in the event of insufficient purchases?
B
1. Are the conditions laid down in Articles 1 and 6(1) of Regulation (EEC) No 1984/83 on block exemptions satisfied if the drinks covered by the purchase commitment are not listed in the text of the contract, but it is agreed that the range will be as set out in the brewery' s price list as amended from time to time?
2. Does a beer-supply agreement as a whole cease to be exempted by Regulation No 1984/83 from the prohibition in Article 85(1) of the EEC Treaty if it contains a commitment to buy soft drinks without including a 'more-favourable-conditions' clause as envisaged by Article 8(2)(b) of Regulation No 1984/83, as might be inferred from Article 2(1) thereof, read in conjunction with paragraph 17 of the Commission Notice concerning Commission Regulations (EEC) No 1983/83 and No 1984/83 of 22 June 1983, or does this mean that only this particular commitment under the purchasing agreement is void by virtue of Article 85(2) of the EEC Treaty because it is in itself permissible under Article 2(1) of Regulation No 1984/83?
C. Does a beer purchasing agreement which falls under Article 85 of the EEC Treaty and does not meet the conditions under Regulation No 1984/83 on block exemptions always require a specific exemption or does the national court have power to treat the agreement as valid where there is a minor divergence from the aforesaid regulation?"
2. The national court points out that the questions submitted by it are probably not all equally necessary for resolving the dispute before it, but that they may in any event serve to develop the Court's case-law. The Court has consistently held that the greatest possible account is to be taken of the assessment of the national court with regard to the relevance of the questions raised. (1) Accordingly I shall consider all the questions.
However, the national court's comment shows that the order in which the questions have been put need not necessarily be followed by the Court. In my Opinion I shall begin with the questions set out under B and C and only then turn to the four questions set out under A. The questions set out under B and C may well be more crucial to a proper understanding of the legal position of the contracting parties in practice than the more abstract questions set out under A.
3. As stated in the order for reference, Mr Delimitis, the applicant in the main proceedings, is asking the national court to declare that the beer supply agreement between him and Henninger Braeu, the defendant in the main proceedings, on 14 May 1985, is not valid. The flat-rate penalty stipulated in the agreement for failure to observe the agreed minimum purchasing obligation has, therefore, in his view, no effect. The applicant in the main proceedings argued that the agreement and the minimum purchasing obligation are invalid since in his view that obligation infringes Article 85(1) of the EEC Treaty, and is not saved by Commission Regulation No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (hereinafter referred to as "the block exemption regulation"). (2)
The national court's questions in the context of the regulatory system of European competition law
4. By way of introduction to the reply to be given to the questions submitted for a preliminary ruling, I consider it important to recall certain fundamental points which do not so much concern the substantive objectives of the competition provisions of the Treaty and the policy based thereon, as the division of competences and the procedural techniques laid down by the Treaty and by the basic Regulation No 17 in this regard. (3) A proper understanding of these matters is important in assessing the questions raised in the main proceedings.
5. Central to Community competition policy is the Commission. Article 9 of Regulation No 17 gives the Commission exclusive competence to declare the provisions of Article 85(1) of the EEC Treaty to be inapplicable on the basis of Article 85(3); it may exercise this power by means of an individual decision or, where it is authorized to do so by the Council, by means of a generic exemption regulation. No such power is conferred upon national competition authorities or national courts. The national competition authorities do, however, concurrently with the Commission, have the power to apply the prohibition under Article 85(1) (and Article 86) as long as the Commission has not itself initiated a procedure. For their part the national courts are also empowered, without limitation as to time, to apply Article 85(1) (and Article 86), since those provisions are Treaty provisions having direct effect, and, where Article 85(1) is unreservedly applicable, also to make a declaration of nullity pursuant to Article 85(2). Thus it is also for the national court to interpret the provisions of a block exemption drawn up by the Commission, since those provisions also have direct effect. (4) In all these cases, the national court may refer questions to the Court for a preliminary ruling on the interpretation (or the validity) of the Community provisions they are called on to apply.
If I permit myself to review these fundamental rules, it is because it allows me at the outset to underline two points. The first is that it is not for the national court, or for the Court of Justice in the context of a reference for a preliminary ruling, to alter or add to the contents of a generic exemption issued by the Commission. The issue of such an exemption is an act of policy which falls within the exclusive competence of the Commission. Consequently, when an agreement is not covered by the terms of a block exemption regulation, that block exemption, in itself a derogation from the prohibition under Article 85(1), and therefore to be strictly interpreted, may on no account be extended.
The second point is that, if an agreement does come within the terms of a block exemption, it becomes in practice immaterial to the contracting parties whether the agreement falls within the prohibition of Article 85(1) because, even if it does, the agreement is in any event exempt and therefore compatible with Article 85.
6. The first questions which therefore fall to be dealt with are those submitted by the national court under B. If the agreement entered into between the applicant and the defendant in the main proceedings comes within the terms of block exemption 1984/83, the questions set out under A with regard to the assessment of a bundle or network of in themselves insignificant agreements are of no real practical importance in the resolution of the dispute in the main proceedings, nor is indeed the question set out under C with regard to the obtaining of an individual exemption.
The presence of, or membership in, a network of agreements is moreover not relevant to the application in principle of block exemption 1984/83. (5) That factor may indeed be relied upon by the Commission in order to withdraw the block exemption, where appropriate applying Article 14 of Regulation No 1984/83:
"when it finds in a particular case that an agreement ... has certain effects which are incompatible with the conditions set out in Article 85(3) of the Treaty, and in particular where:
(b) access by or of other suppliers to the different stages of distribution in a substantial part of the common market is made difficult to a significant extent". (6)
Article 14, cited above, is based on Article 7 of Regulation No 19/65/EEC of the Council of 2 March 1965, (7) in which the Commission was authorized by the Council to grant block exemptions in respect of certain categories of agreements, including exclusive supply agreements. It follows from the terms of Article 7 ("may withdraw the benefit of application of that regulation") and from the terms of Article 14 cited above ("the Commission may withdraw the benefit of this Regulation") that a decision adopted by the Commission pursuant to that provision may not be given retroactive effect. (8) Until such a decision has been taken, the agreement in question consequently remains compatible with Article 85. (9)
7. It is only when the agreement is not covered by the block exemption - a finding to which I shall come later in connection with the agreement in issue in the national proceedings (infra, paragraphs 10 and 11) - and the brewery has knowingly assumed the risk of entering into an agreement which is not "automatically" exempt, that the situation is less clear. The question whether Article 85(1) applies to such agreements, having regard in particular to the fact that they form part of a network of agreements, then arises in sharp relief. If the parties wish to ensure that the agreement is valid, they must notify it to the Commission and request individual exemption under Article 85(3) should the agreement appear to fall within the prohibition under Article 85(1).
In such a case, in considering agreements such as the one before the Court, account should also be taken of Article 4(2)(1) of Regulation No 17. (10) Under that provision it is not necessary to notify agreements to which undertakings from one Member State are party and which do not relate either to imports or to exports between Member States in order to obtain an individual exemption from the cartel prohibition, in derogation from the general rule laid down in Article 4(1) of Regulation No 17. According to the judgment of the Court in Bilger v Jehle this exemption from notification also applies to contracts entered into in large numbers and forming part of a network. (11)
The consequence of such exception from the duty of notification is that, under Article 6(2) of Regulation No 17, any exemption subsequently given by the Commission on the basis of Article 85(3) (because the parties nevertheless requested it) may have retroactive effect. The possibility that the Commission may exempt an agreement with retroactive effect - without being bound by a period of time as regards agreements not subject to notification - may lead to conflicting decisions, for example if a national court has in the meantime declared the agreement void under Article 85(2) without taking into consideration the continuing possibility of an exemption (whose grant is not within the jurisdiction of the national court but falls within the competence of the Commission: see paragraph 5 supra). It was in order to avoid such conflicts that the Court held in the Haecht II judgment in relation to so-called "new" agreements (12) that it is "for the Court to judge, subject to the possible application of Article 177, whether there is cause to suspend proceedings in order to allow the parties to obtain the Commission's standpoint ...". (13) Such a stay of proceedings, the Court added in the same paragraph, is superfluous, however, if the national court establishes "either that the agreement does not have any perceptible affect on competition or trade between Member States or that there is no doubt that the agreement is incompatible with Article 85".
The national court thus has a choice. Either it may hold that the agreement certainly does not fall within the prohibition of Article 85(1) (and it would be superfluous to ask the Commission to declare the prohibition under Article 85(3) inapplicable), or that it does in fact fall within the prohibition under Article 85(1) and most probably, in the light of the Commission's practice, will not be eligible for a declaration of inapplicability under Article 85(3) (although in the case of an agreement not subject to notification, such as the present agreement, a request to that effect may always be made to the Commission); in that case, the court has no reason to stay the proceedings. Or the national court may take the view that the status of the agreement is uncertain - even where it has already referred a question to the Court for a preliminary ruling which may, after all, only be on the interpretation (or the validity) of Community rules and not on application of those rules to a concrete situation -, in which case it stays the proceedings until the parties have obtained a ruling from the Commission.
8. It is self-evident that the uncertainty as to the applicability of Article 85(1) in a given case will be greatest where the national court is required to take into consideration not only the legal context, but also the economic context of an agreement, since that agreement, as in the present case, forms part of a whole network of agreements. The questions raised by the national court under A bear this out, although it may be noted at this stage that the Court may answer those questions only in so far as they concern the interpretation of Community law (see paragraph 14 infra). I can therefore imagine that in such a case a suspension of proceedings may be deemed desirable until such time as the Commission's ruling is obtained on the applicability of Article 85 in the specific case.
As the Court held in the Brasserie de Haecht II judgment, it is for the national court to stay the proceedings:
"subject to the possible application of Article 177 ... in order to allow the parties to obtain the Commission's standpoint" (paragraph 12).
How can that be done in practice? One way has already been indicated by the Court: the national court may refer a question to the Court for a preliminary ruling in the context of which the Commission may be expected to indicate to the Court in its written or oral observations its view on the applicability of Article 85 to the agreement in question. That is however not a conclusive method since the procedure for a preliminary ruling before the Court concerns only the interpretation, as in the present case, or the validity of Community rules and, strictly speaking, not the application thereof to the concrete case, although the Commission may give indications in that regard (see paragraph 14 infra). A second method is that the parties (or one of them) in a case such as this of an agreement not subject to notification nevertheless notify the agreement to the Commission, for example within a period specified by the national court, with a view to obtaining negative clearance (Article 2 of Regulation No 17) or, if that is not possible, an individual exemption (Article 6 of Regulation No 17). Whether such notification is still possible - at the request of both parties or only one of them - after proceedings have been initiated before the national court, depends in my view on national rules of procedure. If such a notification is still possible, serious delays will have to be reckoned with in view of the normal duration of the Commission's examination. A third method is indicated by the Commission in some of its annual reports on competition which refer to an existing practice whereby national courts ask the Commission for its viewpoint on cases before them. (14) The Commission' s representative at the hearing confirmed that such contacts, although sporadic, do still take place. The question whether, and in what form and under what conditions, such direct contacts with the Commission may take place depends essentially on national rules of procedure. For its part, the Commission clearly cannot, in the absence of a proper notification, react by issuing formal negative clearance or a declaration of inapplicability. Yet the information obtained in that way may be of such a nature as to permit the national court to determine with greater certainty whether the prohibition under Article 85(1) is applicable and whether the agreement could have been eligible for an individual exemption. Once that certainty has been acquired, there is under the doctrine laid down in the Brasserie de Haecht II judgment no further reason for prolonging the stay of proceedings.
Individual and block exemption and the questions under C and B
9. The foregoing observations enable me, before proceeding to reply to the questions under B, to give an answer to the question asked under C. It is as follows.
In the case of a beer supply agreement falling under Article 85(1) of the Treaty and not satisfying the conditions of the block exemption Regulation No 1984/83, an individual exemption from the Commission is required. For that purpose, the agreement must be notified to the Commission, which in the case of (new) agreements following under Article 4(2)(1) of Regulation No 17 is not subject to any limitation in time. Nevertheless, the national court - if it is sufficiently certain - taking account of the information obtained from the Commission in the course of the proceedings for a preliminary ruling and/or after obtaining supplementary information from the Commission and having regard to the replies given by the Court in these proceedings, may directly hold that the prohibition contained in Article 85(1) is not applicable and the agreement is therefore valid or declare the prohibition contained in Article 85(1) to be applicable, hold that a formal declaration of inapplicability by the Commission is unlikely and, therefore, in pursuance of Article 85(2), declare those parts of the agreement which infringe Article 85(1) to be invalid. (15)
10. That reply to the question under C presupposes that the agreement in question does not come within block exemption Regulation No 1984/83, which remains to be examined. That is the issue raised in the questions under B. If the contract is indeed covered by the block exemption, the reply to the questions under A, which is discussed below, is strictly speaking superfluous (see paragraph 2 supra).
The agreement between the applicant and the defendant in the main proceedings corresponds, in so far as concerns the type of agreement, with the description given in Article 6(1) of Regulation No 1984/83 concerning exempt beer supply agreements. The applicant agrees with the defendant, in consideration for special commercial or financial advantages, to purchase only from the defendant or its subsidiaries certain beers and certain soft drinks for resale in premises for the sale and consumption of drinks designated in the agreement. However, the agreement derogates from Article 6(1), inasmuch as the beers and drinks referred to are not "specified in the agreement" but are only indicated by reference to the price list of the brewery or its subsidiary. (16)
That derogation from the block exemption is the subject of Question B(2) to which in my opinion an answer may be readily given. The fact that the beers and other drinks concerned by the exclusive purchasing obligation are not mentioned in the agreement itself but in a price list which may be unilaterally amended by the brewery means that the block exemption is no longer applicable. The reasons for that have already been given above (at paragraph 5). I shall repeat them briefly. As far as agreements falling under Article 85(1) are concerned, block exemptions are exceptions from the prohibition on cartels established on the basis of a policy decision (taken after due consideration and after consultation with the consultative Committee on Competition and Dominant Positions), each part of which must be regarded as having its own significance. It is not for the national court or for the Court of Justice to extend the content of a block exemption beyond the normal interpretation of those provisions: the Commission has sole competence to declare Article 85(1) to be inapplicable by virtue of Article 85(3). The courts do not have that power.
11. For the proper understanding of the Question B(2) it is important to know that the contract in question includes the letting by the defendant to the applicant of the public house in question. In accordance with recital 18 in the preamble to the block exemption regulation, in the case of such contracts
"it is necessary to provide special rules ... ; ... the reseller must have the right to obtain from other undertakings, under the conditions specified in this Regulation, other drinks, except beer, supplied under the agreement or of the same type but bearing a different trademark."
(emphasis added).
Effect is given to that recital with regard to both categories of drinks in Article 8(2) in the following manner:
"Where the agreement relates to premises which the supplier lets to the reseller or allows the reseller to occupy on some other basis in law or in fact, the following provisions shall also apply:
...
(b) the agreement must provide for the reseller to have the right to obtain:
- drinks, except beer, supplied under the agreement from other undertakings where these undertakings offer them on more favourable conditions which the supplier does not meet,
- drinks, except beer, which are of the same type as those supplied under the agreement but which bear different trademarks, from other undertakings where the supplier does not offer them." (17)
The agreement in issue between the applicant and the defendant in the main proceedings contains, in the terms of the question, no right, as mentioned in Article 8(2)(b), first indent, to purchase according to a "more-favourable-conditions clause" the drinks supplied under the terms of the agreement (the "contract goods") (nor, if my understanding is correct, does it give the right to purchase the drinks referred to in the second indent of that provision, namely drinks of the same type as the contract goods but which bear different trademarks). In fact the agreement prohibits the purchase of beer and other drinks from other brewers or undertakings in general (except where the products come from other Member States, a point I shall turn to later) and therefore does not provide for the purchasing rights reserved by Article 8(2)(b).
The national court asks what are the consequences in particular of the absence of the "more-favourable-conditions clause" mentioned above. For the reasons already stated (at paragraphs 5 and 10, supra) it is not for the judicial authorities to derogate from the conditions provided for in the block exemption regulation for the declaration of the inapplicability of Article 85(1). If the agreement does not strictly correspond with the block exemption, therefore, it is denied the benefit of the block exemption.
Whether the agreement in that case is void with regard to those of its features which are incompatible with Article 85 (see footnote 15 supra), as the national court also asks, depends on whether - in so far as it does indeed fall within the terms of the prohibition contained in Article 85(1) - it is exempted therefrom on the basis of an individual decision adopted under Article 85(3). In order to obtain that exemption the agreement must also be notified to the Commission (see paragraph 8 supra).
12. For the sake of completeness I would point out that in the agreement in issue there are other features restrictive of competition which are not in accordance with the block exemption regulation.
It has already been said (at paragraph 10 supra) that the exclusive purchasing obligation contained in the agreement for beer and soft drinks supplied by the brewery or its subsidiary companies is in accordance with the terms of Article 6(1) of the block exemption, except with regard to the mandatory listing in the agreement of the drinks covered (see however also footnote 16). However, the agreement imposes a further substantive obligation on the applicant, namely, as already mentioned, an unlimited prohibition on competition in respect of all types of beer and all soft drinks supplied by other breweries or undertakings, except where they come from other Member States (on the latter point, see paragraph 24 infra). Such general prohibitions on competition in respect of all types of beer and soft drinks (other than the contract goods dealt with under the purchasing obligation) from other breweries or undertakings in the Federal Republic of Germany or from non-member countries go further than the restrictions deemed permissible under Article 7(1)(a) and (b) of the block exemption: that Article solely concerns the prohibition on dealing in beer and other drinks of the same kind as the contract goods (subject to the possible application of the derogations therefrom mentioned in the previous paragraph) and the fundamental obligation to sell beers of a kind other than the contract goods only in bottles, cans or other small packages. However, as regards the authorized restrictions, Article 7 makes no distinction concerning the origin of the product whilst the agreement under examination in the national proceedings excludes from the prohibition beer and drinks originating in other Member States. Here again it is necessary to apply the principle that the terms of the block exemption regulation must be strictly complied with, and that it is not for the courts to balance out divergences in one direction or the other from the provisions of the block exemption regulation.
The applicant in the main proceedings also refers to a prohibition on advertising which goes beyond what is authorized by Article 7(1)(c) of the block exemption and a prohibition on the installation of automatic games machines not supplied by a person specified in the agreement, both of which clauses are said to render the block exemption inapplicable in accordance with Article 8(1)(a) of Regulation No 1984/83. (18) Since the national court did not ask any question concerning those clauses in the agreement - the clause mentioned in the foregoing paragraph is however mentioned indirectly in Question A(4) (see paragraph 13 and, more particularly, paragraph 24 infra) - I will not go further into this.
13. Moreover, the agreement in issue imposes upon the applicant in the main proceedings the obligation to purchase a minimum of 132 hectolitres of beer a year, which is enforced by a penalty clause and by the right granted to the defendant to terminate the agreement without notice.
Under Article 2(3)(b) of Regulation No 1984/83, to which Article 9 of the regulation refers, a minimum purchasing obligation does not constitute an obstacle precluding the application of the block exemption. (19) In Question A(4), the national court mentions the minimum purchasing obligation in connection with the possibility allowed by the agreement to the reseller to purchase beer from other Member States. The national court wonders whether, in those circumstances, the agreement is capable of adversely affecting trade between the Member States. I will examine that question below (see paragraph 24).
The scope of Article 85(1) and the questions under A
14. If it is accepted, as I have argued, that the agreement in question is not covered by the block exemption under Regulation No 1984/83, it then becomes necessary for the national court - possibly with the help of the Commission from which it may obtain information and unless it wishes to give the parties time to notify the agreement to the Commission in order to obtain an individual exemption (see paragraph 8 supra) - to examine whether the agreement is compatible with Article 85(1). In that case it is faced with the questions under A.
In considering the reply to those questions, I wish to emphasize again that they relate exclusively to the interpretation of Community law. In other words it is not for the Court to apply the rules as interpreted to the concrete case. Nor is it for the Court (or the national judicial authorities) to take policy decisions under the guise of interpretation; in interpreting Community law, on the contrary, the Court must take account of the policy conducted by the political institutions, provided that the lawfulness of that policy is not being challenged on other grounds.
15. The questions set out under A relate to the impact on competition. As a preliminary matter it is necessary to define the relevant market on which competition must be assessed. The Commission and the defendant in the national proceedings, together with the French Government, proceed on the assumption that in the present case the Federal Republic of Germany must be deemed to be the relevant market on the ground that there is in fact very little trade in beer between the Member States. That is all the more so because exclusive purchase agreements, such as the present agreement, are apparently, without any notable exceptions, (20) entered into between parties established in the same Member State, although as a secondary matter, they may provide for beer to be supplied from abroad.
Deeming the territory of a Member State to be the relevant market is not without paradox. Article 85 (like Article 86), in addition to protecting the economic freedom of market participants (publicans, brewers, consumers), is concerned to prevent competition from being distorted within the common market, and to prevent networks of private agreements from setting up between the Member States barriers which, inter alia, under the case law on the free movement of goods, would not be permissible if set up by the public authorities. Nevertheless, when, owing to factors other than practices restrictive of competition or the activity of public authorities, the relevant market retains a national structure, that market must be deemed to constitute the relevant market as determined by the facts. I thus share the Commission's point of view.
16. In addition to the geographical delimitation of the market, it is also necessary to define the product market. In the various submissions made to the Court two points of view have been argued. According to the defendant in the main proceedings, not only beer sold in public houses, restaurants, etc., must be taken into account, but also beer sold by supermarkets and other retailers. Both channels of trade are said to be closely connected, having regard also to the fundamental concern of Community law to ensure the interpenetration of national markets: foreign beers which find a ready market in the retail trade will inevitably find their way into the public-house trade. The fact that the prices charged by breweries to publicans are higher than those charged to retailers is not a decisive factor. Moreover, in certain regions, (white) wine should also be included in the analysis as a close substitute for beer.
The Commission and the applicant in the main proceedings take the opposite view. (21) The degree of parallelism in the two price trends (22) is not sufficient for it to be said that the product is the same. The decision to go to a public house is influenced by a large number of factors and the brand of beer on offer is just one of those factors.
The latter argument I find more convincing. Reciprocal movements in prices and sales, as described by defendant, also exist as between meat and fish products, between apples and bananas, and so on. Everything depends upon the closeness of the correlation, on the degree of product interchangeability. Correlation or interchangeability is always gradual. There comes a point when market sectors merge. In the light of those observations, the fact that the brewery sector operates a separate market for beer consumed on the premises, by means of a particular kind of agreement entailing special prices and special conditions seems to me to be decisive: it demonstrates that the sector in question regards the products sold in public houses as a specific product.
17. The questions submitted under A relate in the first place to the criterion under Article 85(1) of the effect on trade between States. That criterion is closely connected with the other criterion, namely the restriction of competition within the common market, particularly where there is within a Member State a network of similar agreements covering the same relevant market. Where such a network is extensive, it may restrict not only the competitive freedom of the contracting parties and third parties and reduce the number of supply and demand possibilities and thus compromise the competitive nature of the market structure, but also protect the national market from imports from other Member States. Consequently I will deal with both criteria together.
I thus construe Question A(1) and (2) as asking whether the mere fact that an agreement which is insignificant in itself forms part of a bundle of similar beer supply agreements is sufficient for the agreement to infringe Article 85(1), and, if so, what percentage of "tied undertakings" is enough to trigger an infringement of Article 85(1).
18. The answer to those questions is contained in the Court's case-law. In its judgment in the Société Technique Minière case, (23) the Court emphasized in connection with the criterion with regard to restriction of competition and with particular reference to a sole distributorship agreement:
"in order to decide whether an agreement containing a clause 'granting an exclusive right of sale' is to be considered as prohibited by reason of its object or its effect, it is appropriate to take into account in particular the nature and quantity, limited or otherwise, of the products covered by the agreement, the position and importance of the grantor and the concessionaire on the market for the products concerned, the isolated nature of the disputed agreement or, alternatively, its position in a series of agreements, the severity of the clauses intended to protect the exclusive dealership or, alternatively, the opportunities allowed for other commercial competitors in the same products by way of parallel re-exportation and importation."
With specific regard to exclusive purchasing obligations entered into by cafe owners, the Court held in the Brasserie de Haecht judgment (Haecht I), (24) that in assessing the terms of the prohibition contained in Article 85(1):
"regard must be had to such effects [on competition] in the context in which they occur, that is to say, in the economic and legal context of such agreements, decisions or practices and where they might combine with others to have a cumulative effect on competition.
... it would be pointless to consider an agreement, decision or practice by reason of its effects if those effects were to be taken distinct from the market in which they are seen to operate and could only be examined apart from the body of effects, whether convergent or not, surrounding their implementation.
Thus in order to examine whether it is caught by Article 85(1) an agreement cannot be examined in isolation from the above context, that is, from the factual or legal circumstances causing it to prevent, restrict or distort competition.
The existence of similar contracts may be taken into consideration for this objective to the extent to which the general body of contracts of this type is capable of restricting the freedom of trade."
In connection with any effect on trade between Member States the Court held that:
"In order to satisfy this condition, it must be possible for the agreement, decision or practice, when viewed in the light of the combination of the objective, factual or legal circumstances, to appear to be capable of having some influence, direct or indirect, on trade between Member States, of being conducive to a partitioning of the market and of hampering the economic interpenetration sought by the Treaty.
When this point is considered the agreement, decision or practice cannot therefore be isolated from all the others of which it is one.
The existence of similar contracts is a circumstance which, together with others, is capable of being a factor in the economic and legal context within which the contract must be judged.
Accordingly, whilst such a situation must be taken into account it should not be considered as decisive by itself, but merely as one among others in judging whether trade between Member States is capable of being affected through any alteration in competition."
19. In the Brasserie de Haecht I judgment the Court made clear that the existence of a bundle of exclusive sales agreements in the beer sector (25) constitutes one factor which, taken together with other factors, may prompt the national court to apply Article 85(1) to an agreement which at first sight appears insignificant. That, then, is the reply to be given to Question A(1).
That also provides the reply to Question A(2). Since the circumstance that the agreement forms part of a network constitutes one and only one of the factors from which the applicability of Article 85(1) may be inferred, no set figure, such as 60%, can be laid down for that factor. Nor, is it within the competence of the Court to lay down such a specific rule of thumb in the course of interpreting rules of law. Quantitative, aggregate and thus statistical data cannot in themselves entail or preclude the applicability of Article 85(1). It may merely be said that a high proportion of tied outlets, for example from 40% to 60%, seriously affects the competitiveness of a market sector.
20. I now come to Question A(3). As I understand it, the national court wishes to know whether - in a case where the fact that the agreement forms part of a network involving a high proportion of tied outlets does not constitute the sole factor leading to a conclusion that an agreement that is in itself insignificant falls within the terms of Article 85(1) - it may reach that conclusion if, having regard in particular to a number of criteria which it tentatively enumerates, (26) the facts of the case show that the cumulative effect of all exclusive beer supply agreements in the Federal Republic of Germany and the place occupied by the agreement under examination within that whole entail in the circumstances under consideration a breach of Article 85(1). Essentially, then, the national court wishes the Court to give more specific details with regard to the passages cited (in paragraph 18 supra) from the Brasserie de Haecht I judgment.
The reply in principle to that question, as appears from that judgment, is undoubtedly in the affirmative. But as far as the criteria listed are concerned, I think that two of them may be discarded straight away, namely those mentioned in the eight and ninth indents of Question A(3) (density of tied outlets in particular geographical areas; comparison with sales outside premises for the sale and consumption of drinks) because they conflict with the description given above (at paragraphs 15 and 16) of the relevant geographical or product market. The remaining criteria may be divided into two groups. The first group focuses on the agreement and the contracting parties in themselves and includes the criteria set out in the first, second and fifth indents. The second group relates to the actual or potential effect of other agreements within the network; it includes the criteria mentioned under the third, fourth, sixth, seventh and tenth indents.
21. With regard, first to the second group of criteria, which are the most difficult for the national court to apply, it is striking how little definite information is available to the Commission. Questioned by the Court on the criteria listed by the national court, the Commission's representatives were compelled to admit that the Commission possessed only approximate information concerning the volume of sales in tied outlets as a whole, which the Commission estimates at 25% of the overall beer market (third indent), and it has practically no information concerning the number, duration and the volume of tied-outlet agreements, or the relationship to quantities sold by untied distributors (fourth indent); as regards the volume of sales to public houses by wholesalers who are not tied, it has only general data relating to the volume of beer distributed directly by the breweries and the volume distributed through the intermediary of wholesalers (sixth indent), it has no figures relating to tied-outlet agreements with foreign producers (seventh indent) nor any information either as regards the possibility of opening up other sales outlets or acquiring them (tenth indent). The general impression is that both the calculation of the proportion of tied outlets and the setting of a theoretical percentage above which trade is appreciably affected is largely arbitrary.
In those circumstances I consider that although it is necessary to have regard to the existence of a network of similar exclusive purchasing agreements in a given sector as a general factor reflecting the greater or lesser degree of competitiveness of the market sector in question, excessive importance must not be attached to that fact. The facts available in that connection are too cursory and imprecise. The existence of a network should be seen instead as an economic background to the individual agreements which means that, where there is such a network, restrictions on competition resulting from individual agreements will more readily fall under the prohibition in Article 85(1) than they would have done in a situation where, in the absence of any such network, the market structure had been more competitive.
22. That leads me to the first group of criteria (see paragraph 20 supra), which, as I have pointed out, relate to the agreement in question itself and to the contracting parties. Those criteria are also linked to Question A(4) which also relates to a specific clause in the agreement in question.
The relevance of the first two criteria (size of the brewery, volume of turnover to which the contract relates) in the examination of the applicability of Article 85(1) has been established since the Société Technique Minière judgment (cited in paragraph 18 supra): under the terms of that judgment the matters to be taken into consideration include "the nature and quantity, limited or otherwise, of the products covered by the agreement, the position and importance of the grantor and the concessionaire on the market for the products concerned". I can therefore subscribe without difficulty to the point of view expressed by the Commission at the hearing that, given the same proportion of tied outlets on the relevant market, the agreements of a smaller brewery are less likely to be caught by Article 85(1) than those of a larger brewery.
However, that does not mean that it is for the Court to lay down a general and necessarily abstract de minimis rule which would grant small breweries a kind of dispensation from European competition law. Furthermore, were such an abstract rule to be laid down, how would it be possible to define the concept of "small brewery", if the same market share may be small in one Member State where the relevant geographical market is characterized by relatively strong concentration but large in another Member State with a lower degree of concentration? (27) That means, however, as I have pointed out, that the modest market position and the modest volume of sales of the brewery constitute factors which may be taken into account in examining the applicability of Article 85(1).
But questions also then arise with regard to the size of the brewery. One was raised at the hearing. According to the Commission, the defendant belongs to the second largest brewery group in the Federal Republic of Germany (with a 6.4% share of production); the defendant's representative observed in reply that, even if the defendant does belong to a group, it acts autonomously in so far as marketing is concerned and it also has its own beer brands. But, even if the defendant is considered in isolation, there seems to be no denying that it still holds the thirteenth place out of a total of more than 1000 breweries in spite of the fact that, according to its representative at the hearing, the defendant's share of the German market for draught beer as a whole amounts only to 0.3%, or 1.3% of the tied market.
As we know, in order to assist those concerned in defining agreements of minor importance - having regard to the turnover of the contracting undertakings and the market share covered by the agreement - the Commission has published a Notice, its current version being that of 3 September 1986. (28) Without wishing to express a view on the exact legal force of such a notice, which constitutes in any event a declaration of intention from which it is possible to deduce the Commission's policy on implementation and confers on the individuals for whom it is intended certain legitimate expectations, the national court may nevertheless find therein guidance as to how the Commission is applying Article 85(1), which may be of assistance to it in its assessment. It should be mentioned that the Notice - which as currently worded does not apply in a sector such as this where there are networks of agreements - does not consider the contracting parties in isolation but together with associated undertakings (upstream and downstream). In other words the fact that an undertaking belongs to a group is a factor to be taken into consideration. There is much to be said for that point of view: even if separate undertakings preserve a certain autonomy, it is undeniable that the fact that they belong to a powerful group at the very least increases their financial capacity.
Were it to appear that the agreement between the applicant and the defendant in the main proceedings does not satisfy the conditions laid down in the Commission's Notice, that would be an additional factor in concluding that the de minimis rule is not applicable, particularly since the agreement must in the present case be viewed in conjunction with a whole network of agreements, which is, as has been pointed out (at paragraph 21), such as to render the prohibition laid down in Article 85(1) more readily applicable.
The access clause and the restriction on trade between States
23. The remaining criterion mentioned by the national court and falling within the first group, namely the nature of the commitments entered into by the publican under the tenancy agreement, points to another factor in assessing the applicability of Article 85(1), also mentioned by the Court in the Société Technique Minière judgment. That factor is as follows: "the severity of the clauses intended to protect the exclusive dealership or, alternatively, the opportunities allowed for other commercial competitors in the same products by way of parallel reexportation and importation" (cited in paragraph 8 supra). It is also envisaged in Question A(4) as to the possibility for the reseller to purchase drinks from undertakings established in other Member States, in conjunction with his obligation to buy a specified minimum quantity of beer.
As regards the nature of the publican's commitments I would point out that factor is also taken into account in block exemption Regulation No 1984/83 in so far as additional rights are conferred on resellers to whom the supplier has leased premises for the sale and consumption of drinks, or who have been allowed by the reseller to occupy such premises on some other basis in law or in fact (Article 8(2)(b)). That reveals the intention of affording better protection to the competitive freedom of contracting parties in a weak economic position and of granting less readily exemption from the prohibition under Article 85(1).
More generally, the fact that Regulation No 1984/83 excludes certain clauses from the prohibition of Article 85(1) shows that in the eyes of the Commission those clauses are in principle capable of being covered by the prohibition under Article 85(1). As regards the restriction of competition, many factors point to this condition being satisfied since the exclusive purchasing obligation in respect of contract goods is accompanied by a ban on competition from other beers and drinks and by a minimum purchasing obligation for beer. Considered in themselves, that is to say in isolation from other aggravating or mitigating circumstances already examined above, those clauses appreciably restrict the freedom of action of the reseller and of third party suppliers. Moreover, those restrictions are also such that, in themselves and leaving aside the access clause examined below, they are capable of affecting trade between Member States.
24. The next question is whether and to what extent the so-called "access clause", that is to say the possibility afforded to the reseller under the agreement to purchase, notwithstanding the abovementioned non-competition clause, beer and soft drinks (other than the contract goods supplied by the defendant) from other Member States, in any way precludes the applicability in principle of Article 85(1). Thanks to that clause, there is less restraint on the freedom of action of the reseller and third party suppliers and above all on trade between Member States. I will make three observations in this connection.
First, I would observe that, as the Court has consistently held, it is necessary to examine whether "on the basis of a set of objective factors of law or of fact the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realization of the aim of the single market in all the Member States". (29) In that context it is for the national court to interpret the "access clause" in question (which is formulated a little differently as regards beer and as regards soft drinks). It can be more or less restrictively interpreted: does it permit the publican to sell only drinks which he has himself purchased in other Member States or may he also sell drinks from other Member States (including drinks put into free circulation there but originating in non-member countries) which have been imported into the Federal Republic of Germany by other parties (for example by an undertaking established in another Member State but having a sales office in the Federal Republic of Germany)? The Commission adopts the first, more restrictive interpretation, and concludes that there is an effect on trade between Member States. If that interpretation is correct - which is for the national court to judge - then that conclusion is in fact inescapable.
A second observation is that even were the clause in question to permit in principle free access for beer and drinks from other Member States, it is still necessary to examine to what extent the contractual stipulation of a minimum purchasing obligation in respect of beer in fact frustrates that access. That obligation, coupled with penalties which, as is apparent from the facts in the main proceedings, are actually applied by the brewery, may, depending on the sales of the public house in question, render the access clause more or less, or even totally, nugatory. If sales are exactly the same as the quantity laid down in the minimum purchasing clause, the possibility afforded by the access clause of purchasing foreign beers elsewhere is as good as useless. The examination of that question, too, must be left to the national court.
I would add one last observation. It is clear from the Court's case-law that the fact that an agreement relates only to the marketing of products in a single Member State (30) and/or that a distribution network organized under an agreement in a single Member State is not concerned with the distribution of products from other Member States (31) does not rule out the possibility of the agreement having an adverse effect on trade between Member States. Such an effect might arise where for example an agreement between undertakings extending over the whole of the territory of a Member State has the effect of reinforcing partitioning at national level, thereby impeding the economic interpenetration which the Treaty is designed to bring about and protecting national production. (32) In the present case, that effect may be brought about by the existence of a network of supply agreements which together cover the whole territory of a Member State but not by a single beer supply agreement concerning only one public house. If it is found that, by virtue of the terms and the effects (in conjunction with the minimum purchasing obligation) of the access clause, the agreement in question does not in itself affect trade between Member States, one cannot in my view conclude that that condition is met in the case of that individual agreement just because of the existence of a network. The agreement itself adds no element of restriction of trade between Member States to the network under consideration, and the negative effects of the latter may not therefore be attributed to the individual agreement.
Conclusion
25. In the light of the foregoing, it seems to me that, assuming block exemption Regulation No 1984/83 does not apply, so that the national court is confronted with the question whether it is sufficiently certain that Article 85(1) does or does not apply to the concrete situation before it not to suspend the procedure pending any individual declaration of inapplicability applied for by the parties (or by one of them) - the national court has sufficient information available to it to acquire that certainty. As the Court stated in its judgment in Société Technique Minière (33) to which I have already referred on a number of occasions, three kinds of circumstances must be taken into account: (1) the nature and quantity of the contract products and above all the market position of the contracting parties; (2) the fact that a network of parallel agreements exists in the market sector; (3) the degree of severity of the exclusivity clause and other clauses in the agreement).
There is in the present case a not inconsiderable network of parallel agreements which reduces the competitiveness of the market and makes it more likely that the prohibition under Article 85(1) applies than if no such network existed. The national court has available to it information on the market position of the contracting parties, in particular the brewery, as regards both the brewery itself and the group to which it belongs. In the case of a larger brewery it may be assumed more readily than in the case of a (genuinely) small brewery that its greater influence on the market and the many contracts which it has entered into will entail still further adverse effects on the competitive structure of the market (already limited by the existence of the network) and the competitive freedom of third party suppliers and of resellers tied to the brewery. The national court may likewise form an opinion on the exact scope and effects of the exclusive purchasing obligation, which in principle falls under Article 85(1), considered in conjunction with the non-competition clause and the minimum purchasing obligation, having regard to the mitigating effect on the restriction on trade between Member States produced by the so-called access clause.
In view in particular of the information already given orally by the Commission at the hearing and summarized at paragraph 21 above and the press communique relating to a recent investigation of the Community beer market, mentioned above in footnote 27, (34) it is for the national court to assess whether it is still necessary to obtain additional information from the Commission.
26. Having regard to the foregoing considerations, I suggest that the Court give the following reply to the national court's questions:
"A (1) In order to reply to the question whether an individual beer supply agreement containing an exclusive purchasing clause infringes the prohibition under Article 85(1) of the EEC Treaty, it is necessary to take into consideration, together with the other factors making up the economic and legal context, the existence on the market in question of a "bundle" of similar beer supply agreements, no matter which brewery is involved. A purely quantitative criterion, such as a given percentage of undertakings entering into commitments is not in itself sufficient to support a decision one way or the other.
(2) In addition to the existence of a bundle of agreements, it is also necessary to take into consideration as forming part of the legal and economic context the extent and the significance on the relevant market of the contracting undertakings and of any associated undertakings and the stringency of clauses restricting competition and particularly in this case the exclusivity clause, the non-competition clause and the minimum purchasing obligation.
(3) The fact that the agreement forms part of a network of similar beer supply agreements is not in itself sufficient to support the conclusion that an individual agreement is adversely affecting trade between Member States, where the agreement contains a clause authorizing the purchase of beer and other drinks from other Member States and that clause may in actual fact be construed as meaning that it cannot entail any hindrance, direct or indirect, actual or potential, to trade between Member States and, viewed in conjunction with the minimum purchasing obligation in the contract, does not in law or in fact entail any such hindrance.
B - (1) The conditions laid down in Articles 1 and 6(1) of block exemption Regulation No 1984/83 are not satisfied if the drinks covered by the exclusive purchasing agreement are not listed in the text of the contract but are determined by reference to the brewery's price list for the time being or that of its subsidiaries.
(2) A beer supply agreement coupled with a tenancy agreement for premises for the sale and consumption of drinks falls in its entirety outside the scope of the exemption under Regulation No 1984/83 where, with regard to soft drinks, it does not give the reseller inter alia the right to purchase under a "more favourable terms" clause within the meaning of Article 8(2)(b) of the abovementioned Regulation.
C - For a beer supply agreement falling within the terms of the prohibition under Article 85(1) of the EEC Treaty and not satisfying the conditions of Regulation No 1984/83 on block exemptions to be exempt from that prohibition, it must be covered by an individual decision of inapplicability given by the Commission under Article 85(3), for which purpose it must be notified to the Commission. In the case of a new agreement not subject to notification, such a declaration of inapplicability may be given retroactive effect.
Since the Commission has exclusive power to apply Article 85(3), the national court is not empowered under that provision to declare the prohibition under Article 85(1) inapplicable to a contract showing a departure, albeit a minor one, from the terms of a block exemption regulation. If, regard being had in particular to the replies given to the questions under A, the national court is certain that the contract does not fall within the terms of the prohibition under Article 85(1), it may simply declare it valid. If on the other hand the national court is certain that that is not the case, it may declare the contract to be void, at least as regards those parts which are incompatible with the terms of Article 85(1), and possibly even as regards its other components where the relevant provisions of national law require it so to decide. In case of doubt as to the applicability of Article 85(1) to the specific situation, the national court, if it sees fit, may obtain supplementary information from the Commission in accordance with its national rules of procedure or give the parties the opportunity to notify the contract to the Commission."
(*) Original language: German.
(1) See for example the judgment in Case 126/80 Salonia [1981] ECR 1563, at paragraph 6, and also the judgment in Case 26/62 Van Gend & Loos [1963] ECR 1.
(2) OJ L 173, p. 5.
(3) Regulation No 17, first regulation on the implementation of Article 85 and 86 of the Treaty, Official Journal, English Special Edition 1959-1962, p. 87.
(4) Judgment in Case 63/75, Roubaix v Roux [1976] ECR 111, at paragraph 11.
(5) In the judgment in Case 47/76 De Norre v Brouwerij Concordia [1977] ECR 65, the Court, in paragraph 31, gave the following clear direction to the Commission: "There is, in fact, every reason for extending, in so far as the Treaty so permits, a group exemption to agreements which come within the scope of the prohibition contained in Article 85 only because of the cumulative effect produced by the existence of one or more networks of similar agreements, that is, because of factors unconnected with the agreement in question, of which, in consequence, the contracting parties generally have no specific knowledge and an appraisal of which requires the consideration of circumstances so numerous and complicated that a national court would be placed in a position of extreme difficulty." It was evidently partly as a result of that direction that the Commission drew up block exemption Regulation No 1984/83 which contains special provisions for beer supply agreements.
(6) In the abovementioned De Norre v Brouwerij Concordia case, the Court alluded to this possibility in paragraph 32: "If the Commission were to consider that the cumulative effect of all the agreements involved is so restrictive that group exemption did not appear justified, it would have the right and the duty to use the powers conferred on it by Article 7 of Regulation No 19/65 (I shall return to this subsequently), which states: 'Where the Commission ... finds that in any particular cases agreements ... to which a regulation adopted pursuant to Article 1 [that is, a regulation providing for exemption by categories] of this regulation applies have nevertheless certain effects which are incompatible with the conditions laid down in Article 85(3) of the Treaty, it may withdraw the benefit of application of that regulation and issue a decision in accordance with Articles 6 and 8 of Regulation No 17, without any notification under Article 4(1) of Regulation No 17 being required'."
(7) Regulation No 19/65/EEC of the Council on application of Article 85(3) of the Treaty to certain categories of agreement and concerted practices (Official Journal, English Special Edition 1965-1966, p. 35).
(8) See M. Waelbroeck, Concurrence, in Megret and Others, Le Droit de la Communauté Economique Européenne, pp. 137-138, with references, and also the Commission Notice on Regulations Nos 1983/83 and 1984/83 of 22 June 1983, OJ 1984 C 101, p. 2, paragraph 24. It would however appear from the reference made in Article 7 of Regulation No 19/65 to Articles 6 and 8 of basic Regulation No 17 that the sole decision which may be taken is a decision exempting the agreement under certain conditions, and thus not a decision purely and simply withdrawing the exemption: Waelbroeck, loc. cit., but see paragraph 24 of the Commission Notice.
(9) See in this connection the judgment of the Court of First Instance in Case T-51/89 Tetra Pak [1990] ECR II-309, at paragraph 20 and particularly paragraph 25.
(10) That provision deals with so called "new" or "existing" agreements, that is to say agreements entered into after Regulation No 17 came into force or became applicable, in so far as they do not constitute a faithful reproduction of an old, duly notified standard agreement (judgment in Case C-1/70 Rochas v Bitsch [1970] ECR 515, at paragraph 6). In the present case it does not appear to be disputed that the agreement in question is a new agreement and not a reproduction of an old one (that is to say one entered into prior to 13 March 1963).
(11) Case C-43/69 Bilger v Jehle [1970] ECR 127, at paragraphs 5 and 6. The negative condition mentioned in Article 4(2)(1), namely that the agreement must not relate to imports and exports between Member States nevertheless has, according to the Court, a narrower signification than the condition regarding restrictions on trade between States laid down in Article 85(1) (paragraph 5).
(12) See footnote 10 above.
(13) Judgment in Case 48/72 Brasserie de Haecht v Wilkin-Janssen [1973] ECR 77, at paragraph 12. That applies, the Court held, both to agreements which must be notified (and are notified) and to agreements exempted from notification (paragraph 13).
(14) Thirteenth Commission Report on Competition, 1983, pp. 148-149. See also the Fifteenth Report, 1985, pp. 52 et seq., particularly p. 55.
(15) In principle it is only those provisions of the agreement which are incompatible with Article 85(1) that are void. The consequences of nullity for all other parts of the agreement are governed not by Community law but by the applicable national law (judgment in Case 319/82, Société de Vente de Ciments et Bétons [1983] ECR 4173, at paragraph 11, with references to earlier case-law).
(16) A reading of the purchase obligation stipulated in the agreement between the applicant and the defendant discloses another derogation not mentioned in the order for reference: pursuant to the contract (Clause 6(1)) the obligation is applicable "in und au*er Haus" (on and off the premises) and therefore is applicable also to sales off the premises mentioned in the contract (for example at street markets or festivals).
(17) This additional protection for the reseller as regards drinks except beer may be read together with the provision contained in Article 8(2)(a) which allows the brewery to impose on the reseller exclusive purchasing obligations and prohibitions on competition during the whole period during which he is actually operating the premises for the sale and consumption of drinks.
(18) In accordance with the terms of paragraph 52 of the Commission's Notice, the installation by the reseller of amusement machines may be made subject to the owner's permission in order not to impair the character of the premises. The appointment of a recommended installer is permissible only if the choice of installers is made on the basis of objective, uniform and non-discriminatory criteria as to quality.
(19) The Commission Notice mentions however, at paragraph 57, that the obligation to purchase minimum quantities may not impede the full exercise of the rights of the reseller/tenant which are protected under Article 8(2)(b) of Regulation No 1984/83, but which are not provided for in the agreement in question (see paragraph 11 supra).
(20) It appeared at the hearing that in its investigation into the market in beer the Commission did not discover any transnational beer supply agreements.
(21) The Commission has already defended that view in the Brouwerij Concordia case. The same point of view was also expressed in the reply to Written Question No. 1764/82 (OJ 1983 C 93, p. 22 at paragraph 1(a)) and in the Seventeenth Report on Competition Policy, 1987, paragraph 29.
(22) At the hearing the defendant in the main proceedings mentioned a recent scientific investigation from which it appeared that, as regards the Federal Republic of Germany, beer price increases in public houses led to a decline in sales in favour of the retail trade.
(23) Case C-56/65 Société Technique Minière v Maschinenbau Ulm GmbH [1966] ECR 235.
(24) Case 23/67 Brasserie de Haecht v Wilkin-Janssen [1967] ECR 407, at p. 415 and 416.
(25) That applies both to agreements entered into by a single brewery and agreements entered into by other breweries: see judgment in Case 43/69 Bilger v Jehle, cited above in footnote 11, at paragraph 5. The inference to be drawn from that is that it is not necessary for the agreements to be exactly the same.
(26) Most of these criteria were already mentioned by Mr Advocate General Roemer in his Opinion of 21 November 1967 in Case 23/67 Brasserie de Haecht v Wilkin-Janssen [1967] ECR 407, at p. 417.
(27) At the hearing the Commission's representative produced a copy of the press communique distributed on 14 June 1990 by the Commissioner for Competition on the result of an investigation into the Community beer market. It appears from that summary text that compared to the other Member States the Federal Republic of Germany has a relatively low degree of concentration.
(28) OJ 1986 C 231, p. 2.
(29) See the Société Technique Minière judgment, cited above, at p. 249, and, as regards more recent case-law the judgment in Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 22).
(30) Judgment in Case 246/86 Belasco v Commission [1989] ECR 2117, paragraph 33.
(31) Salonia judgment, cited above, at paragraph 15.
(32) Salonia judgment, cited above, at paragraph 14; to the same effect, see the judgment in Case 8/72 Nederlandse Cementhandelaren [1972] ECR 977, paragraph 29.
(33) Cited above in footnote 23.
(34) The press communique contains only a summary and the policy conclusions drawn by the Commission from its investigation.
Translation
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