The complainant, a co-operative of drinks wholesalers called Freedom, alleged that InBev (now Anheuser-Bush InBev) was abusing its dominant position by discriminating between its distributors, as the off-trade distributors were given better conditions than the on-trade distributors.

As part of its commercial practice, InBev established two distinct channels to distribute its bottled beer, one consisting of wholesale distributors supplying hotels, restaurants and bars (on-trade), and another consisting of retail distributors supplying home consumers (off-trade). Both channels enjoy different price and discount policies.

Freedom argued that the distinction between the on-trade and off-trade segment is no longer warranted as a result of increasing overlap between the two distribution channels. Thus it submitted that all distributors are active on the same market and as a consequence, should be treated the same. The determination of the relevant market was therefore of crucial importance for the Council’s assessment. Freedom mainly based its claim on the fact that some hotel, restaurant or bar owners buy their supplies in regular supermarkets, because of the important price difference. InBev rebutted this argument by stating that the fact that it is capable of maintaining different price levels is in itself evidence of the existence of two separate markets. The Council followed InBev’s reasoning and in line with European case law, concluded that the different groups of customers are still sufficiently well-defined and distinct so as to constitute separate markets. In addition, price arbitrage did not reduce this difference, as there are very little customers from the on-trade segment that get supplies from the off-trade segment.

Because the two segments still constitute different markets, the College of Competition Prosecutors ruled that InBev did not abuse its dominant position in applying different prices and closed the case.