Restriction or distortion of competition - rigorous competition between established operators - operators' tying agreements with retail outlets nevertheless capable of distorting competition
Crehan v Inntrepreneur Pub Co (CPC) and another: ChD (Mr Justice Park): 26 June 2003
The claimant leased two public houses from the second defendant.
The second defendant subsequently assigned the freeholds to the first defendant, subject to the claimant's leases, which contained beer ties whereby the claimant was bound to purchase most of his beer from a third-party supplier.
The claimant sought damages alleging that the ties infringed article 81 of the EC Treaty and that they had caused the failure of his business.
The defendants submitted, among other things, that, even if it were difficult for a newcomer to penetrate the UK market, nevertheless the existence of rigorous competition between the established incumbents in the market was sufficient to show that it was not difficult for a competitor to gain access to the market.
David Vaughan QC, Mark Brealey QC and Mark Wonnacott (instructed by Charles Russell, Cheltenham) for the claimant; Kim Lewison QC, Nicholas Green QC, James Flynn and Martin Rodger (instructed by Sprecher Grier Halberstam) for the defendants.
Held, giving judgment for the defendants, that the mere existence of competition between established incumbents was not sufficient to demonstrate that it was not difficult for a competitor to gain access to the market; but that, leaving the tied estates issue aside, on the facts there were sufficient other outlets to satisfy the court that it was not difficult for a competitor to gain access to the market; and that, accordingly, article 81(1) had not been infringed.
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