Opinion of Mr Advocate General Van Gerven delivered on 11 October 1990

1 Original language: German.

2 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 Gcnd en Loos [1963] ECR 1.

3 OJ L 173, p. 5.

4 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

5 Judgment in Case 63/75, Roubaix v Roux [1976] ECR 111, at paragraph 11.

6 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 ana 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.

7 In the abovementioned De Norre v Brouwerij Concordia case, the Court alluded to this possibility in paragraph 32: If the Commission were to consider triat 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 I [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.

8 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).

9 See M Waelbroeck, Concurrence, in Mcgrct and Others, Le Droit de la Communauté Economique Européenne, pp 157-138. with references, and also the Commission Nonce on Regulations Nos 1983/83 and 1984/83 of 22 June 1983. OJ 1984 C 101, p 2, paragraph 24 lt would however appear from the reference made in Amele 7 of Regulation No 19/65 to Anieles 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 simph with-drawing the exemption Waelbroeck, loc cit., but sec paragraph 24 of the Commission Notice

10 Sec in this connection the ludgment of the Court of First Instance in Case T-51/89 Tetra Pak [1990] ECR II-309, at paragraph 20 and particularly paragraph 25

11 That provision deals with so-called new or existing agreements, that is to sav 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, dulv notified standard agreement dudgment in Case C-l/70 Rochai v Ilmel [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 save one entered into prior to 13 March 1963)

12 Case C-43/69 Bilger v Jehle [1970] ECR 127, ai para graphs 5 and 6 The negative condition mentioned in Article 4 (2)11), namely that the agreement must not relate to impons and expons between Member Stales ncvenhclcss has, according to the Coun. a narrower signification than the condition regarding restrictions on trade between States laid down m Article 85(1) (paragraph 5).

13 See footnote 10 above.

14 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).

15 Thirteenth Commission Report on Competition. 1983. pp 148-149 See also the Fifteenth Report. 1985, pp 52 et seq., particularly p 55

16 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 Je Cimenti et Bétons [1983] ECR 4173, at paragraph 11, with references to earlier case-law).

17 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 außer 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).

18 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

19 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.

20 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 arc 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).

21 It appeared at the hearing that in its investigation into the market in beer the Commission did not discover any transnational beer supply agreements.

22 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.

23 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-

24 Case C-56/65 Société Technique Minière v Maschinenbau Uim GmbH[1966] ECR 235.

25 Case 23/67 Brasserie de Haecht v Wilkin-Janssen [1967] ECR 407, at p. 415 and 416.

26 That applies both to agreements entered into by a single brewery and agreements entered into by other breweries sec judgment in Case 43/69 Bliver v Jeble, cued above in footnote II, at paragraph 5. Tne inference to be drawn from that is that it is not necessary for the agreements to be exactly the same

27 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

28 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.

29 OJ 1986 C 231, p. 2.

30 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)

31 Judgment in Case 246/86 Belasco v Commission [1989] ECR 2117, paragraph 33.

32 Saloma judgment, cited above, at paragraph 15.

33 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.

34 Cued above in footnote 23.

35 The p ress communique contains only a summary and the policy conclusions drawn by the Commission from its investigation.