Catering agreements / Beer supply agreements II

An article about catering agreements was recently published in this series of articles. This article discussed a decision by the Netherlands Competition Authority (NMa) regarding the beer supply agreements submitted by Heineken for exemption.

Apparently there is a lot going on in “beer country”. On 13 June 2002, the preliminary relief judge of the District Court of Amsterdam rendered a judgment regarding the alleged anti-competitive nature of a beer supply contract. The Amsterdam Court of Appeal also ruled on this on appeal, which judgment was rendered on 31 October 2002. In the following, this will be explained.

This involved a dispute between Grolsch on the one hand and the student society called Lanx on the other. The parties had entered into a beer supply agreement with each other for a period of 10 years. This agreement was still entered into under the old Block Exemption Regulation 1984/83. Given the entry into force of the new Block Exemption Regulation on vertical agreements dated 1 June 2000, Grolsch proposed to the Lanx student association to amend the current agreement in accordance with the new regulations.

The new Block Exemption Regulation had the effect that an exclusive purchase obligation was made possible in a specific way. However, Lanx refused to accept this adjustment as it believed that the exclusive purchase was contrary to Article 6 of the Competition Act (Mw) and Article 81 EC. Both the preliminary relief judge in Amsterdam and the Court of Appeal in Amsterdam do not follow Lanx’s reasoning. However, both authorities do this on different grounds. The Interim Relief Judge reached this judgment on the basis of the fact that it is of the opinion that there would be no appreciable anti-competitive agreements now that Grolsch’s market share on the Dutch market for the sale of beer via the on-trade is only around 10%. . The Amsterdam Court of Appeal, on the other hand, follows a different reasoning, namely that the beer supply agreements fall under the old Block Exemption Regulation for exclusive purchasing agreements and the new Block Exemption Regulation for vertical agreements. This is in view of the fact that both Block Exemption Regulations offer the possibility of an exclusive purchasing obligation for an indefinite period, provided that the beer is sold in a building that has been given over to the buyer by the supplier.

On that basis, the Court of Appeal therefore concluded that the position taken by Lanx cannot be enforced in law. The Court disregards the question of whether there is an appreciable restriction of competition. In fact, the Court follows the same reasoning as that of the NMa. The NMa was of the opinion that the exclusivity included in the beer supply agreements, as submitted by Heineken for exemption, with regard to the sale of draft beer, under which the catering company undertakes to sell only one brand of draft beer. selling was allowed. In the opinion of the NMa, this so-called in-store inter-brand competition is permitted as it will not have a foreclosure effect.

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