Judgment_paragraph 52 · Brasserie nationale SA (anc. Brasseries Funck-Bricher et Bofferding), Brasserie Jules Simon et Cie SCS and Brasserie Battin SNC v Commission of the European Communities (T-49/02, T-50/02, T-51/02)

52The applicants then claim that, far from restricting their freedom of action, they exercised it to ensure that contracts were honoured. Even supposing that the Agreement had a restrictive effect on competition that could be separated from that inherent in ‘beer ties’, in their opinion it was justified by the need to preserve commercial loyalty. Brasserie Nationale relies in this respect on the judgments in Cases 120/78 Rewe-Zentml (Cassis de Dijon) [1979] ECR 649 and C-309/99 Wouters and Others [2002] ECR I-1577. According to the applicants, the state of Luxembourg law cannot be a ‘frontier’ fixing the level of guarantee that they could grant themselves in order to ensure commercial loyalty. In addition, they seek to establish an analogy with Article 5(c) of the Code of Conduct of the Institute of Professional Representatives before the European Patent Office (‘the EPI’); they contend that in its decision that was the subject of the judgment in Case T-144/99 Institute of Professional Representatives v Commission [2001] ECR II-1087, paragraphs 89 and 90, the Commission acknowledged that it had no objection to that article. According to the applicants, the Agreement only prohibited a brewer from concluding a contract with a publican who was already tied to a competitor by a contract containing a ‘beer tie’ and entailed no prohibition where the commercial relationship had ended.