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Portugal: Lisbon Court of Appeal confirms infringement by Super Bock sanctioned by AdC

Christian Fernsby |
The Lisbon Court of Appeal has upheld Super Bock's competition infringement sanctioned by the AdC in July 2019, as well as the full amount of the 24 million fine imposed on the company.

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The ruling of September 12 dismissed the appeals filed by Super Bock and two company officials against the decision of the Competition, Regulation and Supervision Court (TCRS), which had also upheld in full the sanction imposed by the Autoridade da Concorrência (AdC).

The Lisbon Court of Appeal states that "weighing up all the circumstances analysed, it seems to us that the fines imposed are proportionate and appropriate, given the seriousness of the conduct (vertical agreement between companies to fix prices, with the aim of preventing, restricting or distorting competition in a sensible way), the size of the affected market (covering almost the entire national territory), the long duration of the infringement (11 years) and the consequent advantages for the defendant Super Bock, the economic situation of the defendant and its turnover".

The ruling also states that "despite the absence of a previous record of administrative offenses against the applicants in terms of competition infringements, the grounds for appeal show the devaluation of the infringing conduct and the self-responsibility of the it, is important that the sanction to be applied is capable of promoting awareness, not only in society and the community, but also among the businesses themselves, discouraging them from committing new infringements, as well as curbing the emergence of cartels or similar practices that restrict competition on the part of other operators, particularly in the beer market, which are so damaging to the rights of consumers".

The TRL had requested a preliminary ruling in this case to the Court of Justice of the European Union (CJEU) which also ruled that "Super Bock's exclusive distribution agreements in which it set minimum resale prices could be contrary to competition law".

On July 25, 2019, the AdC fined Super Bock Bebidas, a manager and a director of the company with more than 24 million euros for fixing minimum prices and other transaction conditions applicable to the resale of its products to hotels, restaurants and cafés (HORECA channel) for more than ten years (2006-2017).

At the time, the AdC considered that Super Bock's behavior constituted a serious restriction of competition, prohibited by Article 9(1) of Law 19/2012 (Competition Law) and Article 101(1) of the Treaty on the Functioning of the European Union (TFEU).

The interference of a supplier in the determination of prices and other transaction conditions practiced by independent distributors, who acquire their products for resale, restricts their ability to compete with each other, to the detriment of consumers, who are limited in their options and can no longer benefit from products at reduced prices.

This decision by the AdC, which was appealed by the defendants to the TCRS, was confirmed in full by this court in October 2021.

The markets affected in this case are of crucial importance in the lives of consumers in general. They involve the distribution of beers, waters flat and sparkling, soft drinks, iced tea, wines, sangrias and ciders in hotels, restaurants and cafés, which roughly corresponds to all consumption outside the home.

The practice in question is therefore likely to directly and immediately harm consumer welfare.

In addition, Super Bock is recognized as one of the largest Portuguese companies in these markets, and is of strategic importance for domestic consumption, as well as for national export figures.

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