Notice for the OJ

 

Action brought on 26 February 2002 by Brasserie Nationale against the Commission of the European Communities

    (Case T-49/02)

    Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 February 2002 by Brasserie Nationale, established at Bascharage (Luxembourg), represented by Alexandre Carnelutti and Jean-Louis Schiltz, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

(annul Article 1 of the Commission's decision of 5 December 2001 in Case COMP/37800/F3 - Brasseries Luxembourgeoises, in so far as it finds that the applicant has infringed Article 81(1) of the Treaty;

(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;

(order the Commission to pay the costs.

Pleas in law and main arguments:

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 Luxembourg 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 in the Luxembourg HORECA sector and to prevent foreign brewers from penetrating that sector.

In support of its claims, the applicant puts forward the following pleas in law:

(    The Commission committed an error of law by omitting, 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.

(    The Commission committed an error in its analysis of the scope of the said agreement, by finding that it applied in the absence of a supply contract or beer clause, and thus committed an error of assessment, inasmuch as it based its negative assessment of the agreement on that presumed scope.

(    The Commission committed an error of assessment in characterising the agreement as an agreement by the contracting parties to retain their respective customers. In actual fact, its central and sole purpose was to ensure observance of the contractual exclusivity agreed to between retailers and brewers. The agreement in question was therefore intended solely to constitute a legitimate instrument of horizontal cooperation aimed at guaranteeing compliance with a decisive element affecting the economy, development and fair competition in that sector.

(    The Commission committed an error of fact in taking the view that the purpose of the agreement was to prevent penetration of the market by foreign brewers and that it significantly affected competition.

The applicant stresses that the agreement was concluded on account of an abnormal risk situation created by a situation under national law in which fair competition was directly threatened. Consequently, limited cooperation between brewers, proportionate to the objective pursued, became the only way of ensuring that the "beer clauses" were safeguarded.

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.

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