A recent LinkedIn post by one of my fellow blog editors and the number of likes corresponding comment thread inspired me to take a look at products that are prominent in the antitrust world in particular because of judgements by the European Court of Justice (ECJ). Turns out: Many of them concern drinks. So here is a pub crawl through Europe based on ECJ history, including food, fuel, and cosmetics.
Henninger Bräu
We will start in Frankfurt with a German beer: Henninger Bräu, in a pub run by Mr. Delimitis. Henninger Bräu leased the pub to Mr. Delimitis and required him to purchase a minimum amount of beer and soft drinks from Henninger Bräu’s group. In 1991, the ECJ held that individual beer supply agreements only infringe antitrust rules in case similar contracts have the cumulative effect of denying market access and in case the agreements in question appreciably contribute to the cumulative effect.
Fuel stop
After one beer (non-Oktoberfest-size), we are still allowed to drive in Germany. So before we have the next drink (and stop driving), we pause at a gas station. In this case one run by Spanish company Repsol, which means we have driven quite far since Repsol does not operate gas stations in Germany. There is more than one notable case concerning Repsol, so we will pick the most recent one: In a case concerning civil damages in relation to exclusivity contracts and price fixing, in 2023 the ECJ found that the decisions of national competition regulators need to be regarded as providing sufficient proof of an antitrust infringement if the facts of the decision and of the civil damages action coincide.
Courage
Abandoning driving but sticking to damage claims, we head over to our friends in the UK to have a Courage. Similar to Henninger Bräu, UK brewery Courage leased pubs, and tenants had to buy beer exclusively from Courage. In a judgement that helped form the basis for antitrust damage claims, in 2001 the ECJ held that any individual can claim damages for loss caused to her/him by a contract or by conduct liable to restrict or distort competition.
Whiskey
After such a ground-breaking judgement, one needs heavier stuff. Time for whiskey in Belgium. Importer Dassonville imported whiskey brands VAT 69 and Johnnie Walker to Belgium. However, Belgian law required such products to be sold with a certificate of origin explicitly naming the importer. In 1974, the ECJ came up with the Dassonville formula, according to which all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to (prohibited) quantitative restrictions.
Packaging
After three drinks, one is wondering what company might be responsible for the packaging of the next beer. It could be: Continental Can from the US. According to the Continental Can judgement by the ECJ in 1973, mergers can be assessed under abuse of dominance rules. At the time, the EU did not have its own merger control regime, but the recent Towercast ruling confirmed the Continental Can doctrine with regard to mergers that did not (have to) undergo merger control in today’s times.
Freshen up
After solving the packaging question and before we head to the next beer, it is time to freshen up and apply some cosmetics. And why not pick one from the range of French Pierre Fabre – rings a bell? Pierre Fabre ran a selective distribution system which required sales in a physical space. In 2011, the ECJ categorised such criteria as a ban of online sales, and thus as an antitrust infringement.
Super Bock
Now you have deserved your final next beer which came to antitrust fame more recently: Portuguese Super Bock. More on the case is here on our blog, but in essence the Portuguese regulator imposed a fine for resale price maintenance on Super Bock. In 2023, the ECJ then inter alia found that an assessment of whether a practice constitutes a “by object” antitrust infringement must give consideration to the economic and legal context and also to “the nature of the goods or services” in question.
One final drink
The last drink leads us back to where we started: Germany. In 1979, German law required that alcoholic drinks sold as “liqueur” must have an alcohol content of at least 25% by volume. Can you guess which infamous drink this case concerns? Right, it is Cassis de Dijon, a French cassis liqueur with an alcohol content between 15 and 20%, which could not be imported into Germany at the time. However, the ECJ enabled German citizens to enjoy Kir Royal, to which Cassis de Dijon is an ingredient, in their home country. The court held, somewhat limiting the Dassonville formula, that a product lawfully produced and sold in one EU Member State must be accepted in other Member States, save for restrictions that are necessary for effective fiscal supervision, protection of public health, the fairness of commercial transactions and consumer protection.
A snack before bed
Every good pub crawl ends with something to eat, often fast food like fries. And what are fries without a good sauce? That sauce might come from Remia, a Dutch manufacturer of sauces, margarine and materials for the baker industry. Remia was acquired in 1979 and the transaction agreement (called “the sauce agreement”) included a non-compete clause to protect the acquirer of Remia from competition by the seller. In 1985, the ECJ ruled that such clauses must be necessary for the transaction and that their duration and scope must be strictly limited to that purpose.
ECJ dreams
This ends the ECJ pub crawl, but the court could inter alia accompany you in dreams about perfumes (Coty), fruit (Dole) or wedding dresses (Pronuptia de Paris)…
Many thanks to our trainee Luise Teuber for the research that formed the basis of this post.
Photo by Pixabay.
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