In March 2008, Freedom, a co-operative of drinks wholesalers, lodged a complaint against InBev (now Anheuser-Bush InBev) for an alleged abuse of dominance. InBev uses 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). Different price and discount policies apply for these channels. Freedom argued that InBev had abused its dominant position by applying differentiated trading conditions to the sale of bottled beer between the on-trade and off-trade distributors. According to Freedom, the distinction between the on-trade and off-trade segment was no longer warranted as a result of an increasing overlap between the two distribution channels. It therefore submitted that all distributors are active on the same market and as a consequence, they should be granted similar price and discount conditions.
In September 2010, the College of Prosecutors held that the on-trade and off-trade distribution channels still constitute separate relevant markets and that therefore InBev was under no legal obligation to apply similar price and discount conditions to the on-trade and off-trade distributors (for a summary of the Prosecutor’s report see Belgian Competition and Regulatory Report 2010/Q4). Freedom appealed the decision of the College of Prosecutors and on 29 April 2011, the Competition Council held that the College had insufficiently motivated its decision, by failing to assess whether the application by InBev of differentiated trading conditions to the sale of beer in bottles could amount to an abuse of a dominant position. In addition, the Council held that the College failed to determine whether InBev has a dominant position on any relevant market. As a result, the case was referred back to the College of Prosecutors for further investigation.