EU Competition Law and Policy - compal

Coca-Cola
COMP/A.39.116/B2
European Commission, [2005] OJ L 253/21
©Ariel Ezrachi, December 2012
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Public Enforcement
Commitments
Article 9, Regulation 1/2003
The commitment decision was adopted pursuant to Article 9(1) of Council Regulation 1/2003. The
procedure concerned the conduct of the Coca-Cola Company and its three major bottlers in the supply of
carbonated soft drinks. In a preliminary assessment, the Commission expressed concerns that practices by
the undertakings, including exclusivity-related requirements, growth and target rebates, infringed Article
102 TFEU. In order to resolve these concerns the undertakings offered a range of commitments which
were formally accepted by the Commission and made binding until 31 December 2010. The Commission
could impose a fine amounting to 10% of Coca-Cola’s total worldwide turnover if Coca-Cola breaks its
commitments. In the commitments the undertakings agreed, among other things, to refrain from
exclusivity arrangements, target or growth rebates and tying. In addition Coca Cola committed that where
it provides a free cooler to a retailer and there is no other chilled beverage capacity in the outlet to which
the consumer has a direct access, it will free at least 20% of the space in the cooler provided by Coca-
Cola for the display and sales of competing products.
Musique Diffusion Francaise SA v Commission
Joined Cases 100/80 to 103/80
Court of Justice, [1983] ECR 1825, [1983] 3 CMLR 221
Public
Enforcement
Fines
‘…the Commission's power to impose fines on undertakings which, intentionally or negligently, commit
an infringement of the provisions of [Articles 101(1) or 102 TFEU] is one of the means conferred on the
Commission in order to enable it to carry out the task of supervision conferred on it by [Union] law. That
task certainly includes the duty to investigate and punish individual infringements, but it also encompasses
the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by
the Treaty and to guide the conduct of undertakings in the light of those principles.’ (para 105)
‘…in assessing the gravity of an infringement for the purpose of fixing the amount of the fine, the
Commission must take into consideration not only the particular circumstances of the case but also the
context in which the infringement occurs and must ensure that its action has the necessary deterrent
effect, especially as regards those types of infringement which are particularly harmful to the attainment
of the objectives of the [Union].’ (para 106)
‘From that point of view, the Commission was right to classify as very serious infringements; prohibitions
on exports and imports seeking artificially to maintain price differences between the markets of the
various Member States. Such prohibitions jeopardize the freedom of intra-[Union] trade, which is a
fundamental principle of the Treaty, and they prevent the attainment of one of its objectives, namely the
creation of a single market.’ (para 107)
‘It was also open to the Commission to have regard to the fact that practices of this nature, although they
were established as being unlawful at the outset of [Union] competition policy, are still relatively frequent
on account of the profit that certain of the undertakings concerned are able to derive from them and,
consequently, it was open to the Commission to consider that it was appropriate to raise the level of fines
so as to reinforce their deterrent effect.’ (para 108)
‘For the same reasons, the fact that the Commission, in the past, imposed fines of a certain level for
certain types of infringement does not mean that it is estopped from raising that level within the limits
indicated in Regulation no 17 if that is necessary to ensure the implementation of [Union] competition
policy. On the contrary, the proper application of the [Union] competition rules requires that the
Commission may at any time adjust the level of fines to the needs of that policy.’ (para 109)