17. december 2003
Journal nr.3/1120-0100-0930, 3/1120-0301-0293/VARFI
The Council meeting 17. December 2003
In 2000 the Danish Brewers’ Association launched a project to improve the access-ways for transportation of for beers and brewers to the storage facili-ties of retail-stores. The aim of the project is to ensure that the access-ways fulfil the obligations stated in the health and safety at work act. It is the in-tention that the project should lead to an examination of all access-ways.
Any problems concerning the access-ways are to be discussed with the cos-tumer and an advisor from the employees’ health service and any changes required should be fulfilled within a specified time limit. The changes are to be determined by the advisor according to the standards of The Danish Working Environment Service. If the changes are not carried out within the time limit the supplier will not allow the drivers to bring the beers and brewers to the store but unload them on the pavement instead.
The Danish Competition Authority has received a formal notification of the agreement behind the project “a clear way for beer”.
Subsequently, The Danish Competition Authority has received a complaint from HORESTA - the Danish nationwide employer and industry organisa-tion of the Hotel, Restaurant and Tourism Industry - on behalf of two mem-bers. The complaint concerns the way the agreement has been implemented in practise specifically with regards to the extensive requirements of restruc-turing of buildings.
HORESTA finds that the required changes have been unnecessarily extensive because the mentioned problems concerning the access ways (e.g. too many steps) could have been solved with less radical changes than changes in construction i.e. by using electrical sack trucks, which could be a part of the standard equipment of drivers alongside e.g. ordinary sack trucks. Hence, Horesta finds that the agreement constitutes a breach of sec-tion 6 (1) cf. (2) in the competition act, because the common terms of deliv-ery in practice works as a front for minimising costs by not delivering to storage-facilities, and that the agreement constitutes an abuse of dominance by the breweries in breach of section 11 (1) cf. section 11 (3) (1, 2).
The Competition Authority finds that a declaration according to section 9 in the competition act can be granted and Horesta’s complaint is thus dis-missed. The decision is based on the fact that the requirements for the access ways are found to be both factual and objective when emphasis is laid upon the safety and work environment of drivers and other employees. Further-more, the requirements are determined after a process noticed in due time. During this process, the customers have a fair opportunity of making objec-tions and receiving a concrete assessment of these objections. The measur-ing of the access ways is conducted in close cooperation with the advisor according to the standards of The Danish Working Environment Service. No evidence is found of collusive behaviour regarding the terms of delivery be-tween the breweries and producers of soft drinks.
With regards to Horesta’s complaint, attention should be put on the fact that according to the agreement the advisor must promote the most simple and economical solution. This has not been an electrical sack truck but nothing in the agreement is seen to prevent the two complainants from cooperating on such alternative solutions. It is noticed that the Danish Working Envi-ronment Service does not find electrical sack trucks as an effective means of solving the drivers’ problems with continuous and frequent deliveries of heavy goods. The Service states that it is the responsibility of the drivers’ employers to ensure that the work environment meets the obligations stated in the health and safety at work act. This can, among other things, imply that goods may only be delivered to the sidewalk in case the access ways to the storage-facilities fail to fulfil the legal requirements.