93/405/EEC: Commission Decision of 23 December 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty against Schöller Lebensmittel GmbH ' Co. KG (Cases IV/31.533 and IV/34.072) (Only the German text is authentic)

• Articles: 5

Article 1

The agreements concluded by Schoeller Lebensmittel GmbH & Co. KG requiring retailers established in Germany to purchase single-item ice-cream(32) for resale only from that undertaking infringe Article 85 (1) of the EEC Treaty.

Article 2

An exemption pursuant to Article 85 (3) of the EEC Treaty for the agreements referred to in Article 1 is hereby refused.

Article 3

Schoeller Lebensmittel GmbH & Co. KG is hereby required within three months of notification of this Decision to inform dealers with whom it has current agreements of the kind referred to in Article 1 of the full wording of Articles 1 and 2, and to notify them that the agreements in question are void.

Article 4

Schoeller Lebensmittel GmbH & Co. KG may not conclude agreements of the kind referred to in Article 1 until after 31 December 1997.

Article 5

This Decision is addressed to:

Schoeller Lebensmittel GmbH & Co. KG

Bucherstrasse 137

D-W-8500 Nuernberg.

Done at Brussels, 23 December 1992.

For the Commission Leon BRITTAN Vice-President

(1) OJ No 13, 21. 2. 1962, p. 204/62.

(2) OJ No 127, 20. 8. 1963, p. 2268/63.

(3) In the published version of the Decision, some information has been omitted, pursuant to the provision of Article 17 (2) of Regulation (EEC) No 4064/89 concerning non-disclosure of business secrets. However, for a better understanding of the text, some general information has been given in square brackets in those cases where it was possible to do so without violating the non-disclosure requirement for business secrets.

(4) The Bundesverband der Deutschen Suesswarenindustrie e.V. - Fachsparte Eiskrem (ice-cream section of the Association of the German Confectionery Industry) defines 'multipack' as follows: 'The contents consist of small packages, several of which are combined to form a take-home pack' (commentary on product classification, as at 21 May 1990).

(5) The commentary referred to in footnote (1) implies that doorstep delivery services deliver small packages, not as single items, but in cartons containing several items. These cartons may be regarded as multipacks.

(6) Ice-cream for bulk-buying customers includes items divided into portions beforehand by the manufacturer, intended for the catering trade (gateaux, petits fours, pre-cut ice-cream bombes, etc.).

(7) The figures given here for the market as a whole are slightly too low because a few suppliers of industrial ice-cream, including Mars, do not take part in the surveys.

(8) In the case of SLG, which produces mainly branded goods, this basis of assessment leads to some underestimation of the market position.

(9) The tie arrangement whereby its retailers are obliged to use its deep-frozen storage and sales equipment was notified by SLG to the Commission on 8 July 1992.

(10) Judgment in Case C-234/89, Henninger Braeu [1991] ECR, p. I-935, paragraph 17.

(11) SLG contends that products of the impulse ice-cream range can also be used for catering purposes. Because of the obviously limited extent of this type of use, SLG is given the benefit of the doubt and the quantities involved are not excluded from the product market.

(12) Joined Cases 6 and 7/73, Commercial Solvents [1974] ECR, p. 223, at 249: aminobutanol as starting material for the manufacture of an anti-tuberculosis drug and as an emulsifying agent for the dyestuffs industry; Case 85/76; Vitamins [1979] ECR, p. 461, at 514 et seq.: bionutrivite and technological uses of vitamins C and E; Case 322/81, Michelin [1983] ECR, p. 3461: new tyres for the original vehicle-equipment market and for the replacement market.

(13) OJ No L 173, 30. 6. 1983, p. 5.

(14) The need to take account of the structure of demand in delimiting the product market has been expressly acknowledged by the Court of Justice (Michelin, [1983] ECR, p. 3504 et seq.).

(15) The Commission can see no reason for the time being for examining of its own motion the effects of the supply agreements on the market for industrial catering ice-cream.

(16) See footnote (2) on page 9 of this Official Journal.

(17) See Henninger, paragraph 18.

(18) OJ No C 231, 19. 9. 1986, p. 2.

(19) Case 23/67, [1967] ECR, p. 407.

(20) Loc. cit.

(21) Loc. cit.

(22) OJ No C 121, 13. 5. 1992, p. 2.

(23) OJ No C 101, 13. 4. 1984, p. 2.

(24) For judicial consideration of the certainty requirement with reference to a beer supply agreement, see Henninger, paragraph 36.

(25) Judgment of the Court of Justice in Joined Cases 56 and 58/64 Consten and Grundig [1966] ECR, p. 299 at 348; this is the established rule in the judgments of the Court and the Commission's administrative practice.

(26) Case 6/72, Continental Can [1973] ECR, p. 215, paragraph 25.

(27) Commission Decision 92/553/EEC in Nestlé/Perrier (OJ No L 356, 5. 12. 1992, p. 1), recital 98.

(28) Henninger, paragraph 19.

(29) L-I estimates that in 1990 about [...] million litres were sold under exclusive agreements. On total sales of 131,8 million litres of impulse ice-cream and 69,9 million litres of ice-cream for bulk-buying customers, this would mean that the tied proportion of total sales volume in the traditional trade is about [> 55] %.

(30) Henninger, pargraph 12.

(31) The Commission emphasized the importance of display locations inside retail premises for competition between the goods on offer in its Decision 78/172/EEC in Case IV/29.418 Spices (OJ No L 53, 24. 2. 1978. p. 20).

(32) Kleineis, as defined in the commentary on product classification describing the situation at 21 May 1990, drawn up by the ice-cream section of the Association of the German Confectionery Industry (Bundesverband der Deutschen Suesswarenindustrie e. V.).