Inntrepreneur Pub Company (CPC) and others v. Crehan

The House of Lords held that national courts exercising concurrent jurisdiction under article 81 EC are not automatically bound to adopt the factual assessments made by the Commission in decisions addressed to other parties. Article 81(1) and the two Delimitis conditions (whether access to the market was difficult and whether the individual agreement made a significant contribution to foreclosure) remain matters for the national court to decide on the evidence before it. Commission findings are admissible and persuasive evidence, but they do not bind a national court unless the Commission's decision is addressed to the parties or there is a real risk of a decision-conflict in the sense explained in Delimitis and Masterfoods.

The Court allowed the appeal restoring Park J's finding on the first Delimitis condition that the relevant United Kingdom on-trade beer market was not foreclosed in 1991–1993. The Court of Appeal had erred in law in holding that the judge was obliged to adopt the Commission's assessment.

Background and facts:

• Claimant Mr Crehan took leases of two public houses in 1991 subject to beer ties obliging purchase from Courage. The businesses failed and Mr Crehan surrendered the leases, then counterclaimed alleging loss caused by ties unlawful under article 81 EC.
• Inntrepreneur had previously notified tie agreements to the Commission; the Commission investigated and in other cases (Whitbread, Bass, Scottish & Newcastle) concluded the market was foreclosed, granting exemptions in decisions relating to those parties. Inntrepreneur later withdrew its 1992 notification and the Commission declined to decide whether the earlier leases infringed article 81(1), leaving the national court to decide.

Procedural posture:

• The claim was tried before Park J ([2003] EWHC 1510 (Ch)), who, after hearing extensive factual and expert evidence, found Delimitis condition 1 was not satisfied for the period 1991–1993 and dismissed Mr Crehan's claim on that ground.
• The Court of Appeal ([2004] EWCA Civ 637) reversed, holding the national court should have followed the Commission's assessment and erred in law by "second-guessing" the Commission. The case came to the House of Lords by permission.

Nature of relief sought and issues framed:

• Mr Crehan sought damages for loss said to flow from agreements contravening article 81(1) (and the civil consequences under article 81(2)).
• Key issues: (i) whether Delimitis condition 1 (foreclosure) and Delimitis condition 2 were satisfied; (ii) whether the national court was bound, or obliged to defer, to the Commission's factual conclusions in other decisions (not addressed to the parties); (iii) whether the block exemption applied; and (iv) quantum of damages (cross-appeal limited to measure of damages).

Court’s reasoning and conclusions:

• The House of Lords held that while the Commission plays the central administrative role and its decisions are highly persuasive, national courts have concurrent jurisdiction to determine applicability of article 81(1) and must decide questions of fact and law on the evidence before them. The Commission's decisions and notices constitute important evidence but do not bind a national court in proceedings between different parties where no direct conflict, in the sense explained in Delimitis and Masterfoods, can arise.
• The risk of conflict requiring deference or a stay arises only where the same "agreements, decisions or practices" are or will be the subject of a Commission decision addressed to the same parties or where a national ruling would produce an operative inconsistency with a Commission decision. Article 16 of Regulation 1/2003 encapsulates this position.
• Because Park J had heard full evidence and reached conclusions supported on the material before him, the Court restored his findings on Delimitis 1. The cross-appeal on measure of damages was dismissed (no full argument heard before the House).

Appeal allowed. The House of Lords held that Park J was entitled to form his own view on the first Delimitis condition on the evidence before him; Commission factual assessments in decisions concerning other parties are persuasive evidence but are not binding on a national court unless the Commission decision is addressed to the same parties or there is a real risk of operative conflict. The Court of Appeal erred in law in requiring the judge to adopt the Commission's assessment; Park J's finding that the market was not foreclosed for 1991–1993 stands. The cross-appeal on quantum was dismissed.

Trial before Park J, [2003] EWHC 1510 (Ch) (decision on Delimitis issues after full trial). Court of Appeal reversed, [2004] EWCA Civ 637 (reported [2004] Eu LR 693). Appeal to the House of Lords allowed, [2006] UKHL 38.