Inntrepreneur Pub Company (CPC) and others (Original Appellants and Cross-respondents) v. Crehan (Original Respondent and Cross-appellant)

A national court exercising concurrent jurisdiction under the EC Treaty may determine for itself whether an agreement infringes article 81(1). A Commission decision concerning different agreements between different parties in the same market does not bind the national court’s factual assessment.

The Commission’s findings are admissible and may be highly persuasive because of its expertise. They remain part of the evidence, however, and the court must assess them with the other evidence. The duty of sincere co-operation prevents decisions which contradict a Commission decision concerning the same agreements, decisions or practices. It does not create an informal rule binding courts to the Commission’s findings about a market in other proceedings.

The claimant leased two public houses from Inntrepreneur under agreements requiring him to buy beer from Courage at list prices. The businesses failed, and he claimed damages on the ground that the beer ties infringed article 81(1) of the EC Treaty.

Park J, after a 29-day trial, held that the United Kingdom on-trade beer market was not sufficiently foreclosed during the relevant period to satisfy the first condition in Delimitis. The claim therefore failed: [2003] EWHC 1510 (Ch), [2003] EuLR 663.

The Court of Appeal reversed that decision. It held that the duty of sincere co-operation required the judge to follow the Commission’s market assessment in decisions concerning other brewers: [2004] EWCA Civ 637, [2004] EuLR 693. The central issue before the House was whether a national court was legally obliged to adopt that assessment when deciding the validity of different agreements between different parties.

1. Appeal allowed unanimously; cross-appeal dismissed. Lord Hoffmann delivered the leading speech. Lord Bingham gave concurring reasons, and Lord Nicholls, Lord Rodger and Lord Walker agreed. Park J was entitled to determine the foreclosure issue for himself, and his judgment was restored.

2. Per Lord Hoffmann and Lord Bingham, article 81 of the EC Treaty was directly enforceable. National courts shared jurisdiction with the Commission to decide whether article 81(1) applied, although the Commission formerly had exclusive power to grant an exemption under article 81(3).

3. The Community-law duty to avoid conflicting decisions arose where the national court and the Commission dealt with the same agreements, decisions or practices. Delimitis and Masterfoods addressed conflicts between the legal effects of decisions concerning the same subject matter. They did not require a national court to accept the Commission’s factual assessment concerning other agreements between other parties merely because they operated in the same market.

4. Article 16 of Council Regulation (EC) No 1/2003 accurately reflected that position. It prevented a national court from ruling counter to an existing Commission decision concerning the agreements, decisions or practices before it. It also required the court to avoid conflict with a contemplated Commission decision, for which a stay might be appropriate. It did not extend that rule to other agreements in the same market.

5. Per Lord Hoffmann, the Commission’s assessment was admissible evidence and could be highly persuasive because of its expertise. It nevertheless remained only part of the evidence. Where no binding conflict arose, a judge who concluded after assessing all the evidence that the Commission’s view was wrong could not follow it merely out of “deference”. Only a legal rule comparable to issue estoppel could compel that course, and none existed.

6. Per Lord Bingham, the parties had joined issue on foreclosure and produced extensive factual and expert evidence. The judge was bound to analyse that evidence and explain his conclusions, paying particular attention to points on which he differed from the Commission. Treating the Commission’s assessment as conclusive would have amounted to an abdication of the judicial function and would have denied Inntrepreneur a fair trial.

7. The Court of Appeal had not held that Park J’s factual findings were unsustainable, and permission to appeal did not encompass a renewed factual challenge. His finding that the first Delimitis condition was unsatisfied therefore stood. It was unnecessary to determine the second condition, the obsolete block-exemption questions or damages. The cross-appeal concerning quantum was dismissed.

1. House of Lords: The appeal was allowed unanimously and the cross-appeal was dismissed: [2006] UKHL 38. Park J’s judgment was restored.

2. Court of Appeal: The court reversed Park J on the ground that sincere co-operation required adoption of the Commission’s market assessment: [2004] EWCA Civ 637, [2004] EuLR 693.

3. High Court, Chancery Division: Park J held after trial that the first Delimitis condition was not satisfied, so no infringement of article 81(1) was established: [2003] EWHC 1510 (Ch), [2003] EuLR 663.

4. Earlier preliminary proceedings: Carnwath J struck out the damages claim, but a reference to the Court of Justice established that a contracting party could in principle have such a cause of action. Those proceedings formed part of the same litigation.