C-234/89

'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 Are the cumulative effects on the degree, trade between Member market of the totality of the beer States within the meaning of supply agreements in the Federal Article 85(1) of the EEC Treaty Republic of Germany involving because it forms part of a exclusive ties and/or the "bundle" of similar beer supply contributory role of the extant agreements in that Member network of agreements to be State — no matter which brewery ascertained by a comprehensive is involved — and the capacity to examination of the respective produce adverse effects on trade circumstances; if so, what are the between States is to be assessed criteria for such an examination according to the effects on the and does special importance market of that "bundle of attach to any of the following agreements" ? factors :

(2) If Question 1 is answered in the affirmative : — the size of the brewery making the tied-outlet agreement,

How high must the proportion of tied outlets in a Member State be for there to exist an appreciable — the volume of trade affected effect on international trade; by a single agreement,

* Original language: German.

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The national court's questions in the context 86) as long as the Commission has not itself of the regulatory system of European initiated a procedure. For their part the competition law 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 4. By way of introduction to the reply to be by the Commission, since those provisions given to the questions submitted for a also have direct effect. 4In all these cases, preliminary ruling, I consider it important to the national court may refer questions to the recall certain fundamental points which do Court for a preliminary ruling on the inter­ not so much concern the substantive pretation (or the validity) of the Community objectives of the competition provisions of provisions they are called on to apply. 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. 3A proper understanding of these matters is important in assessing the questions raised in the main proceedings.

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where : 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 (b) access by or of other suppliers to the 1984/83, the questions set out under A with different stages of distribution in a regard to the assessment of a bundle or substantial part of the common market is 6 network of in themselves insignificant made difficult to a significant extent'. 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. Article 14, cited above, is based on Article 7 of Regulation No 19/65/EEC of the

. . finds that in any particular cases which come within the scope of the prohibition contained agreements . . . to which a regulation adopted pursuant to in Article 85 only because of the cumulative effect Article I [that is, a regulation providing for exemption by produced by the existence of one or more networks of categories] of this regulation applies have nevertheless similar agreements, that is, because of factors unconnected certain effects which are incompatible with the conditions with the agreement in question, of which, in consequence, laid down in Article85(3) of the Treaty, it may withdraw the contracting parties generally have no specific the benefit of application of that regulation and issue a knowledge ana an appraisal of which requires the decision in accordance with Articles 6 and 8 of Regulation consideration of circumstances so numerous and No 17, without any notification under Article 4(1) of complicated that a national court would be placed in a Regulation No 17 being required".' position of extreme difficulty.' It was evidently partly as a result of that direction that the Commission drew up block 7 — Regulation No 19/65/EEC of the Council on application exemption Regulation No 1984/83 which contains special of Article 85(3) of the Treaty to certain categories of provisions for beer supply agreements. agreement and concerted practices (Official Journal, English Special Edition 1965-1966, p. 35).

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 pan of a network of agreements, then arises in sharp relief. If The consequence of such exception from the parties wish to ensure that the the duty of notification is that, under Anicie agreement is valid, they must notify it to the 6(2) of Regulation No 17, any exemption Commission and request individual subsequently given by the Commission on exemption under Article 85(3) should the the basis of Article 85(3) (because the agreement appear to fall within the parties nevertheless requested it) may have prohibition under Article 85(1). 10 — That provision deals with so-called 'new' or 'existing' agreements, that is to sav agreements entered into after 8 — See M Waelbroeck , Concurrence, in Mcgrct and Others , Regulation No 17 came into force or became applicable, in Le Droit de la Communauté Economique Européenne, so far as they do not constitute a faithful reproduction of pp 157-138. with references, and also the Commission an old , dulv notified standard agreement dudgment in Nonce on Regulations Nos 1983/83 and 1984/83 of Case C-l / 70 Rochai v Ilmel· [ 1970 ] ECR 515, at 22 June 1983. OJ 1984 C 101, p 2, paragraph 24 lt paragraph 6) In the present case it does not appear to be would however appear from the reference made in Amele disputed that the agreement in question is a new agreement 7 of Regulation No 19/65 to Anieles 6 and 8 of basic and not a reproduction of an old one ( that is to saveone Regulation No 17 that the sole decision which may be entered into prior to 13 March 1963) taken is a decision exempting the agreement under certain 11 — Case C-43/69 Bilger v Jehle [1970] ECR 127, ai para conditions , and thus not a decision purely and simph with- graphs 5 and 6 The negative condition mentioned in drawing the exemption Waelbroeck , loc cit., but sec Article 4 (2)11), namely that the agreement must not relate paragraph 24 of the Commission Notice to impons and expons between Member Stales ncvenhclcss 9 — Sec in this connection the ludgment of the Court of First has, according to the Coun . a narrower signification than Instance in Case T-51 / 89 Tetra Pak [ 1990 ] ECR II-309 , at the condition regarding restrictions on trade between States paragraph 20 and particularly paragraph 25 laid down m Anicie 85(1) (paragraph 5).

retroactive effect. The possibility that the 85(3) (although in the case of an agreement Commission may exempt an agreement with not subject to notification, such as the retroactive effect — without being bound by present agreement, a request to that effect a period of time as regards agreements not may always be made to the Commission) ; in subject to notification — may lead to that case, the court has no reason to stay conflicting decisions, for example if a the proceedings. Or the national court may national court has in the meantime declared take the view that the status of the the agreement void under Article 85(2) agreement is uncertain — even where it has without taking into consideration the already referred a question to the Court for continuing possibility of an exemption a preliminary ruling which may, after all, (whose grant is not within the jurisdiction only be on the interpretation (or the of the national court but falls within the validity) of Community rules and not on competence of the Commission: see application of those rules to a concrete paragraph 5 supra). It was in order to avoid situation —, in which case it stays the such conflicts that the Court held in the proceedings until the parties have obtained a Haecht II judgment in relation to so-called ruling from the Commission. 12 'new' agreements 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 13 standpoint ... '. Such a stay of proceedings, the Court added in the same 8. It is self-evident that the uncertainty as paragraph, is superfluous, however, if the to the applicability of Article 85(1) in a national court establishes 'either that the given case will be greatest where the agreement does not have any perceptible national court is required to take into effect on competition or trade between consideration not only the legal context, but Member States or that there is no doubt also the economic context of an agreement, that the agreement is incompatible with since that agreement, as in the present case, Article 85'. 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 The national court thus has a choice. Either of Community law (see paragraph 14 infra). it may hold that the agreement certainly I can therefore imagine that in such a case a does not fall within the prohibition of suspension of proceedings may be deemed Article 85(1) (and it would be superfluous desirable until such time as the to ask the Commission to declare the Commission's ruling is obtained on the prohibition under Article 85(3) inap­ applicability of Article 85 in the specific plicable), or that it does in fact fall within case. 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

'subject to the possible application of Article ination. A third method is indicated by the 177 ... in order to allow the parties to Commission in some of its annual reports obtain the Commission's standpoint' on competition which refer to an existing (paragraph 12). practice whereby national courts ask the Commission for its viewpoint on cases 14 before them. The Commission's represen­ tative 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 How can that be done in practice? One way may be of such a nature as to permit the has already been indicated by the Court: the national court to determine with greater national court may refer a question to the certainty whether the prohibition under Court for a preliminary ruling in the context Article 85(1) is applicable and whether the of which the Commission may be expected agreement could have been eligible for an to indicate to the Court in its written or oral individual exemption. Once that certainty observations its view on the applicability of has been acquired, there is under the Article 85 to the agreement in question. doctrine laid down in the Brasserie de That is however not a conclusive method Haecht II judgment no further reason for since the procedure for a preliminary ruling prolonging the stay of proceedings. before the Court concerns only the interpre­ tation, 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 Individual and block exemption and the agreement not subject to notification never­ questions under C and B theless 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 notifi­ cation is still possible — at the request of both parties or only one of them — after 9. The foregoing observations enable me, proceedings have been initiated before the before proceeding to reply to the questions national court, depends in my view on under B, to give an answer to the question national rules of procedure. If such a notifi­ asked under C It is as follows. cation is still possible, serious delays will have to be reckoned with in view of the 14 — Thirteenth Commission Report on Competition. 1983. pp 148-149 See also the Fifteenth Report. 1985, pp 52 et normal duration of the Commission's exam­ seq., particularly p 55

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 obli­ gation are not mentioned in the agreement itself but in a price list which may be unilat­ 10. That reply to the question under C erally amended by the brewery means that presupposes that the agreement in question the block exemption is no longer applicable. does not come within block exemption The reasons for that have already been Regulation No 1984/83, which remains to given above (at paragraph 5). I shall repeat be examined. That is the issue raised in the them briefly. As far as agreements falling questions under B. If the contract is indeed under Article 85(1) are concerned, block covered by the block exemption, the reply

16 — A reading of the purchase obligation stipulated in the 15 — In principle it is only those provisions of the agreement agreement between the applicant and the defendant which are incompatible with Article 85(1) that are void. discloses another derogation not mentioned in the order The consequences of nullity for all other parts of the for reference: pursuant to the contract (Clause 6(1)) the agreement are governed not by Community law but by the obligation is applicable 'in und außer Haus' (on and off applicable national law (judgment in Case 319/82 Société the premises) and therefore is applicable also to sales off de Vente Je Cimenti et Bétons [1983] ECR 4173, at the premises mentioned in the contract (for example at paragraph 11, with references to earlier case-law). 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 Effect is given to that recital with regard to impose on the reseller exclusive purchasing obligations and prohibitions on competition during the whole period both categories of drinks in Article 8(2) in during which he is actually operating the premises for the the following manner: sale and consumption of drinks

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It has already been said (at paragraph 10 supra) that the exclusive purchasing obli­ gation contained in the agreement for beer and soft drinks supplied by the brewery or its subsidiary companies is in accordance The national court asks what are the conse­ with the terms of Article 6(1) of the block quences in particular of the absence of exemption, except with regard to the the 'more-favourable-conditions clause' mandatory listing in the agreement of the mentioned above. For the reasons already drinks covered (see, however, also footnote stated (at paragraphs 5 and 10, supra) it is 16). However, the agreement imposes a not for the judicial authorities to derogate further substantive obligation on the from the conditions provided for in the applicant, namely, as already mentioned, an block exemption regulation for the unlimited prohibition on competition in declaration of the inapplicability of Article respect of all types of beer and all soft 85(1). If the agreement does not strictly drinks supplied by other breweries or under­ correspond with the block exemption, takings, except where they come from other therefore, it is denied the benefit of the Member States (on the latter point, see block exemption. 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 Whether the agreement in that case is void permissible under Article 7(l)(a) and (b) of with regard to those of its features which the block exemption: that Article solely are incompatible with Article 85 (see concerns the prohibition on dealing in beer footnote 15 supra), as the national court and other drinks of the same kind as the also asks, depends on whether — in so far contract goods (subject to the possible as it does indeed fall within the terms of the application of the derogations therefrom prohibition contained in Article 85(1) — it is mentioned in the previous paragraph) and exempted therefrom on the basis of an indi­ the fundamental obligation to sell beers of a

kind other than the contract goods only in 13. Moreover, the agreement in issue bottles, cans or other small packages. imposes upon the applicant in the main However, as regards the authorized proceedings the obligation to purchase a restrictions, Article 7 makes no distinction minimum of 132 hectolitres of beer a year, concerning the origin of the product whilst which is enforced by a penalty clause and the agreement under examination in the by the right granted to the defendant to national proceedings excludes from the terminate the agreement without notice. 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 diver­ gences in one direction or the other from Under Article 2(3)(b) of Regulation the provisions of the block exemption regu­ No 1984/83, to which Article 9 of the lation. regulation refers, a minimum purchasing obligation does not constitute an obstacle precluding the application of the block 19 exemption. 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 applicant in the main proceedings also the Member States. I will examine that refers to a prohibition on advertising which question below (see paragraph 24). 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 The scope of Article 85(1) and the questions with Article 8(l)(a) of Regulation under A 8 No 1984/83. 1 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 14. If it is accepted, as I have argued, that not go further into this. the agreement in question is not covered by the block exemption under Regulation 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 19 — The Commission Notice mentions, however, at paragraph permission in order not to impair the character of the 57, that the obligation to purchase minimum quantities premises. The appointment of a recommended installer is may not impede the full exercise of the rights of the permissible only if the choice of installers is made on the reseller/tenant which arc protected under Anicie 8(2)(b) basis of objective, uniform and non-discriminatory criteria of Regulation No 1984/83, but which are not provided as to quality. for in the agreement in question (see paragraph 11 supra).

Deeming the territory of a Member State to be the relevant market is not without paradox. Article 85 (like Article 86), in In considering the reply to those questions, addition to protecting the economic I wish to emphasize again that they relate freedom of market participants (publicans, exclusively to the interpretation of brewers, consumers), is concerned to Community law. In other words it is not for prevent competition from being distorted the Court to apply the rules as interpreted within the common market, and to prevent to the concrete case. Nor is it for the Court networks of private agreements from setting (or the national judicial authorities) to take up between the Member States barriers policy decisions under the guise of interpre­ which, inter alia, under the case-law on the tation; in interpreting Community law, on free movement of goods, would not be the contrary, the Court must take account permissible if set up by the public auth­ of the policy conducted by the political orities. Nevertheless, when, owing to factors institutions, provided that the lawfulness of other than practices restrictive of compe­ that policy is not being challenged on other tition or the activity of public authorities, grounds. 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.

beer sold in public houses, restaurants, etc., between meat and fish products, between must be taken into account, but also beer apples and bananas, and so on. Everything sold by supermarkets and other retailers. depends upon the closeness of the corre­ Both channels of trade are said to be closely lation, on the degree of product interchange- connected, having regard also to the funda­ ability. Correlation or interchangeability is mental concern of Community law to always gradual. There comes a point when ensure the interpénétration of national market sectors merge. In the light of those markets: foreign beers which find a ready observations, the fact that the brewery market in the retail trade will inevitably find sector operates a separate market for beer their way into the public-house trade. The consumed on the premises, by means of a fact that the prices charged by breweries to particular kind of agreement entailing publicans are higher than those charged to special prices and special conditions seems retailers is not a decisive factor. Moreover, to me to be decisive: it demonstrates that in certain regions, (white) wine should also the sector in question regards the products be included in the analysis as a close sold in public houses as a specific product. substitute for beer.

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I thus construe Question A(l) and (2) as With specific regard to exclusive purchasing asking whether the mere fact that an obligations entered into by cafe owners, the agreement which is insignificant in itself Court held in the Brasserie de Haecht 24 forms part of a bundle of similar beer supply judgment (Haecht I), that in assessing the agreements is sufficient for the agreement to terms of the prohibition contained in Article infringe Article 85(1), and, if so, what 85(1): percentage of 'tied undertakings' is enough to trigger an infringement of 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 18. The answer to those questions is competition. contained in the Court's case-law. In its judgment in the Société Technique Minière 23 case, the Court emphasized in connection with the criterion with regard to restriction of competition and with particular reference to a sole distributorship agreement: ... 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.

In connection with any effect on trade beer sector constitutes one factor which, between Member States the Court held that: 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(l). '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 That also provides the reply to Question and of hampering the economic interpéné­ A(2). Since the circumstance that the tration sought by the Treaty. 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 When this point is considered the within the competence of the Court to lay agreement, decision or practice cannot down such a specific rule of thumb in the therefore be isolated from all the others of course of interpreting rules of law. Quanti­ which it is one. tative, 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%, The existence of similar contracts is a seriously affects the competitiveness of a circumstance which, together with others, is market sector. capable of being a factor in the economic and legal context within which the contract must be judged.

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 The reply in principle to that question, as concerning the volume of sales in tied appears from that judgment, is undoubtedly outlets as a whole, which the Commission in the affirmative. But as far as the criteria estimates at 25 % of the overall beer market listed are concerned, I think that two of (third indent), and it has practically no them may be discarded straight away, information concerning the number, namely those mentioned in the eight and duration and the volume of tied-outlet ninth indents of Question A(3) (density of agreements, or the relationship to quantities tied outlets in particular geographical areas; sold by untied distributors (fourth indent); comparison with sales outside premises for as regards the volume of sales to public the sale and consumption of drinks) because houses by wholesalers who are not tied, it they conflict with the description given has only general data relating to the volume above (at paragraphs 15 and 16) of the of beer distributed directly by the breweries relevant geographical or product market. and the volume distributed through the The remaining criteria may be divided into intermediary of wholesalers (sixth indent), it two groups. The first group focuses on the has no figures relating to tied-outlet agreement and the contracting parties in agreements with foreign producers (seventh themselves and includes the criteria set out indent) nor any information either as in the first, second and fifth indents. The regards the possibility of opening up other second group relates to the actual or sales outlets or acquiring them (tenth potential effect of other agreements within indent). The general impression is that both the calculation of the proportion of tied 26 — Most of these criteria were already mentioned by Mr outlets and the setting of a theoretical Advocate General Roemer in his Opinion of percentage above which trade is appreciably 21 November 1967 in Case 23/67 Brasserie de Haecht v Wilkin-Janssen [1967]ECR 407, at p. 417 affected is largely arbitrary.

But questions also then arise with regard to The relevance of the first two criteria (size the size of the brewery. One was raised at of the brewery, volume of turnover to which the hearing. According to the Commission, the contract relates) in the examination of the defendant belongs to the second largest the applicability of Article 85(1) has been brewery group in the Federal Republic of established since the Société Technique Germany (with a 6.4% share of Minière judgment (cited in paragraph 18 production); the defendant's representative supra): under the terms of that judgment the observed in reply that, even if the defendant matters to be taken into consideration include 'the nature and quantity, limited or 27 — At the hearing the Commission's representative produced a otherwise, of the products covered by the copy of the press communique distributed on 14 June 1990 by the Commissioner for Competition on the result agreement, the position and importance of of an investigation into the Community beer market. It the grantor and the concessionaire on the appears from that summary text that compared to the other Member States the Federal Republic of Germany has market for the products concerned'. I can a relatively low degree of concentration.

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parallel re-exportation and importation’ that is to say in isolation from other aggra­ (cited in paragraph 8 supra). It is also vating or mitigating circumstances already envisaged in Question A(4) as to the possi­ examined above, those clauses appreciably bility for the reseller to purchase drinks restrict the freedom of action of the reseller from undertakings established in other and of third party suppliers. Moreover, Member States, in conjunction with his obli­ those restrictions are also such that, in gation to buy a specified minimum quantity themselves and leaving aside the access of beer. clause examined below, they are capable of affecting trade between Member States.

First, I would observe that, as the Court has consistently held, it is necessary to examine More generally, the fact that Regulation whether ‘on the basis of a set of objective No 1984/83 excludes certain clauses from factors of law or of fact the agreement in the prohibition of Article 85(1) shows that question may have an influence, direct or in the eyes of the Commission those clauses indirect, actual or potential, on the pattern are in principle capable of being covered by of trade between Member States, such as the prohibition under Article 85(1). As might prejudice the realization of the aim of regards the restriction of competition, many the single market in all the Member factors point to this condition being satisfied 29 States’. In that context it is for the since the exclusive purchasing obligation in national court to interpret the ‘access clause’ respect of contract goods is accompanied by a ban on competition from other beers and 29 — See the Société Technique Minière judgment, cited above, at drinks and by a minimum purchasing obli­ p . 249, and, as regards more recent case-law the judgment in Case 42/84 Remia v Commission [1985] ECR 2545, gation for beer. Considered in themselves, paragraph 22)

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States. If that interpretation is and/ or that a distribution network correct — which is for the national court to organized under an agreement in a single judge — then that conclusion is in fact ines­ Member State is not concerned with the capable. distribution of products from other Member 31 States 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 parti­ tioning at national level, thereby impeding the economic interpénétration which the Treaty is designed to bring about and 32 protecting national production. In the present case, that effect may be brought about by the existence of a network of supply agreements which together cover the A second observation is that even were the whole territory of a Member State but not clause in question to permit in principle free by a single beer supply agreement access for beer and drinks from other concerning only one public house. If it is Member States, it is still necessary to found that, by virtue of the terms and the examine to what extent the contractual effects (in conjunction with the minimum stipulation of a minimum purchasing obli­ purchasing obligation) of the access clause, gation in respect of beer in fact frustrates the agreement in question does not in itself that access. That obligation, coupled with affect trade between Member States, one penalties which, as is apparent from the cannot in my view conclude that that facts in the main proceedings, are actually applied by the brewery, may, depending on the sales of the public house in question, 30 — Judgment in Case 246/86 Belasco v Commission [1989] ECR 2117, paragraph 33. render the access clause more or less, or 31 — Saloma judgment, cited above, at paragraph 15. even totally, nugatory. If sales are exactly 32 — Salonia judgment, cited above, at paragraph 14; to the same effect, see the judgment in Case 8/72 Nederlandse the same as the quantity laid down in the Cementhandelaren [1972] ECR 977, paragraph 29.

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

33 — Cued above in footnote 23.

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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 34 in footnote 27, it is for the national court to assess whether it is still necessary to obtain additional information from the Commission.

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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) lhe 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 Regu­ lation 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.