Europa Individual measure adopted by an institution – authentic text (EEC treaty, article 189) 2. Policy of the EEC – rules on competition applicable to undertakings – application of article 85 of the EEC treaty – proceedings before the commission – prior notification of the parties concerned – purpose 3. Policy of the EEC – rules on competition applicable to undertakings – articles 85 and 86 of the EEC treaty – no distinct areas of application of these provisions according to the level in the economy at which the undertakings operate 4. Policy of the EEC – rules on competition applicable to undertakings – agreements affecting competition – concept (EEC treaty, article 85(1)) 5. Policy of the EEC – rules on competition applicable to undertakings – sole distributorship contracts – prohibition possible under article 85(1) of the EEC treaty 6. Policy of the EEC – rules on competition applicable to undertakings – agreements which may affect trade between the member states – concept (EEC treaty, article 85(1)) 7. Policy of the EEC – rules on competition applicable to undertakings – agreements preventing, restricting or distorting competition – criteria of evaluation (EEC treaty, article 85(1)) 8. Policy of the EEC – rules on competition applicable to undertakings – sole distributorship contracts – absence of a prohibition by categories – prohibition may apply where agreements isolate national markets 9. Policy of the EEC – rules on competition applicable to undertakings – agreements restricting competition – extent of prohibition – limitation to clauses amounting to an infringement and severable from the agreement as a whole (EEC treaty, article 85(1) and (2)) 10. Policy of the EEC – rules on competition applicable to undertakings – national industrial property rights – powers of the commission to prevent the improper use thereof (EEC treaty, articles 36, 85, 222, 234, regulation no 17, article 3) 11. Policy of the EEC – rules on competition applicable to undertakings – sole distributorship contracts – concessionaires not parties to an agreement which is challenged – no obligation on the commission to cause the latter to participate automatically in the proceedings before the commission (EEC treaty, article 85) 12. Policy of the EEC – rules on competition applicable to undertakings – cartels – prohibition – exemption – proof of requirements – exercise of powers of the commission – judicial review of commission’s evaluations – purpose (EEC treaty, article 85(3)) 13. Policy of the EEC – rules on competition applicable to undertakings – cartels – prohibition – exemption – conditions of grant – improvement in the production or distribution of the goods in question – duties of the commission (EEC treaty, article 85(3)) (EEC treaty, article 85(3)) 1. Where a measure adopted by an institution is directed to addressees designated by name, only the text which is notified to them is authentic. 2. During administrative proceedings before the commission concerning the application of article 85 of the EEC treaty the parties concerned must be informed of the facts upon which the complaints of the commission are based. It is not however necessary that the entire content of the file should be communicated to them. 3. Neither the wording of article 85 nor that of article 86 gives any ground for holding that distinct areas of application are to be assigned to each of the two articles according to the level in the economy at which the undertakings operate. 4. Competition may be distorted within the meaning of article 85(1) of the EEC treaty not only by agreements which limit it as between the parties but also by agreements which prevent or restrict the competition which might take place between one of them and third parties. For this purpose it is irrelevant whether the parties to the agreement are or are not on a footing of equality as regards their position and function in the economy. 5. A sole distributorship contract may, without involving an abuse of a dominant position, affect trade between the member states and at the same time have as its object or effect the prevention, restriction or distortion of competition, thus falling under the prohibition of article 85(1) of the EEC treaty. 6. The concept of ‘ agreements…Which may affect trade between member states ‘ is intended to define, in the law governing cartels, the boundary between the areas respectively covered by community law and national law. In this connection what is particularly important is whether the agreement is capable of constituting a threat, either direct or indirect, actual or potential, to freedom of trade between member states in a manner which might harm the attainment of the objectives of a single market between states. Thus the fact that an agreement encourages an increase, even a large one, in the volume of trade between states is not sufficient to exclude the possibility that the agreement may ‘ affect ‘ such trade within the meaning of article 85 of the EEC treaty. 7. For the purpose of the application of article 85(1) there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition. 8. Sole distributorship contracts made between producer and independent concessionaire do not necessarily, as such, fall under the prohibition of article 85(1). Nevertheless an agreement between producer and distributor which might tend to restore the national divisions in trade between member states might be such as to frustrate the most fundamental objectives of the community. 9. The finding of an infringement of article 85(1) must be limited only to those parts of a contract which constitute the infringement as long as they are severable from the rest of the agreement. 10. Articles 36, 222 and 234 of the EEC treaty do not exclude any influence whatever of community law on the exercise of national industrial property rights. The community rules on competition do not allow the improper use of rights under national trade – mark law in order to frustrate the community’s law on cartels. 11. When a sole distributorship contract is challenged before it, the commission is not obliged automatically to require other concessionaires who are not parties to that agreement to take part in the proceedings. 12. The commission may not confine itself to requiring from undertakings proof of the fulfilment of the requirements for the grant of the exemption from the prohibition in article 85(3) of the EEC treaty, but must play its part, using the means available to it, in ascertaining the relevant facts and circumstances. Judicial review of complex economic evaluations by the commission concerning exemption from the prohibition on cartels must take account of their nature by confining itself to an examination of the relevance of the facts and the legal consequences which the commission deduces therefrom. This review must in the first place be carried out in respect of the reasons given for the decisions which must set out the facts and considerations on which the said evaluations are based. 13. The improvement in the production and distribution of goods, which is required for the grant of exemption cannot be identified with all the advantages which the parties to the agreement obtain from it in their production or distribution activities, since the content of the concept of improvement is not required to depend upon the special features of the contractual relationships in question. This improvement must in particular show appreciable objective advantages of such a character as to compensate for the disadvantages which they cause in the field of competition. In its evaluation of the relative importance of the various factors submitted for its consideration, the commission must judge their effectiveness by reference to an objectively ascertainable improvement in the production and distribution of the goods and decide whether the resulting benefit suffices to support the conclusion that the consequent restrictions upon competition are indispensable.
Citations:
C-56/64, [1965] EUECJ C-56/64
Links:
Jurisdiction:
European
Cited by:
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 20 May 2022; Ref: scu.131773
