Alexis de Norre and his wife Martine, née de Clercq v NV Brouwerij Concordia (47/76)

Qualitative aspect

The effect of agreements of the type in dispute depends also on the nature of the relationships which they create: the obligation to obtain supplies exclusively from the supplier concerned or an obligation limited to a minimum quantity; duration of the obligation; where applicable, the duration of the loan constituting consideration for the obligation, etc. Nevertheless, Community law does not require conditions to be imposed on small-scale suppliers relating to the contents of agreements forming part of the network which they have established (see the judgment in Völk and the judgment of 6 May 1971 in Cadillon, Case 1/71, Recueil, p. 351). Inside such a network, even clauses more restrictive than is required for the attainment of the objectives contained in Article 85 (3) might be tolerated.This view is also justified on the ground that such clauses militate against a deterioration in the structure of competition, which might occur if, by means of appropriate price reductions, which might be incompatible with Article 86, the large breweries endeavoured to eliminate the small-scale undertakings operating in the same industry. It would be better to avoid such a situation by a reasonable application of Article 85.To sum up, the Commission proposes that the answer should be as follows:The application of Article 85(1) of the EEC Treaty to exclusive purchase agreements concluded between an undertaking producing, importing or engaged in the wholesale distribution of beer and undertakings selling draught beer requires an appraisal of the extent to which access to the demand from these latter undertakings remains free.In this connexion, account must be taken of the extent of the networks of agreements of the same nature and the stringency of the conditions laying down the exclusive rights and obligations.In cases where one or more large networks of exclusive contracts have deprived a supplier of freedom of choice regarding access to a substantial part of the demand involved, certain networks of secondary importance may not be caught by the prohibition contained in Article 85(1).Assessment of these factors in actual cases must be carried out in the light of the practice followed by the Commission in its decisions or of other information of comparable weight supplied by that institution, subject to review by the Court of Justice.