swarb.co.uk - law index
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Commercial - From: 1991 To: 1991
This page lists 5 cases, and was prepared on 20 May 2019.
Stergios Delimitis v Henninger Brau AG C-234/89; [1991] ECR I-935; [1991] EUECJ C-234/89
28 Feb 1991
ECJ
Commercial
ECJ A beer supply agreement is prohibited by Article 85(1) of the EEC Treaty if two cumulative conditions are met. The first is that, having regard to the economic and legal context of the agreement at issue, it is difficult for competitors who could enter the market or increase their market share to gain access to the national market for the distribution of beer in premises for the sale and consumption of drinks. The fact that, in that market, the agreement in issue is one of a number of similar agreements having a cumulative effect on competition constitutes only one factor amongst others in assessing whether access to that market is indeed difficult. The second condition is that the agreement in question must make a significant contribution to the sealing-off effect brought about by the totality of those agreements in their economic and legal context. The extent of the contribution made by the individual agreement depends on the position of the contracting parties in the relevant market and on the duration of the agreement.
A beer supply agreement which contains an access clause, that is to say one which permits the reseller to buy beer from other Member States, is not such as to affect trade between States provided that the permission corresponds to a real possibility for a national or foreign supplier to supply the reseller with beers from other Member States. That possibility is to be assessed in the light of the wording of the clause, regard also being had to the specific effect of all the contractual clauses in their economic and legal context.
A beer supply agreement does not satisfy the conditions laid down in Article 6(1) of Regulation No 1984/83 for block exemption for this type of agreement if the drinks covered by the exclusive purchasing terms are not listed in the text of the agreement itself but are stated to be those set out in the price list of the brewery or its subsidiaries, as amended from time to time.
Where a beer supply agreement relating to premises used for the sale and consumption of drinks leased or made available to the reseller by the supplier and entailing a purchasing obligation for drinks other than beer cannot enjoy the block exemption provided for in Regulation No 1984/83 because that agreement does not meet the requirement laid down in Article 8(2)(b) of that regulation that the reseller should have the right in certain cases to obtain drinks from other suppliers, that does not necessarily mean that the whole of the contract is void under Article 85(2) of the Treaty, if only because such an agreement may qualify for exemption under another head. If anything is void, it is only those aspects of the agreement prohibited by Article 85(1). The agreement as a whole is void only if those parts do not appear to be severable from the agreement itself.
Whilst both Articles 85(1) and 86 of the Treaty and the provisions of the exemption regulations produce direct effect in relations between individuals and create rights directly in respect of the individuals concerned which the national courts must safeguard, that does not mean that national courts may extend the sphere of application of the block exemption for agreements provided for in Regulation No 1984/83 to a beer supply agreement not explicitly complying with the conditions for exemption contained in that regulation; nor may they declare Article 85(1) of the Treaty inapplicable to such an agreement under Article 85(3). A national court may, however, declare the agreement void under Article 85(2) if it is certain that the agreement could not be the subject of an exemption under Article 85(3). Otherwise, it may in any event, on the one hand, request a preliminary ruling under Article 177 of the Treaty and, on the other, contact the Commission, which, by virtue of its duty of sincere cooperation with the judicial authorities of the Member States responsible for ensuring that Community law is applied and respected in the national legal system, will supply the national court with such economic and legal information as is necessary in order to resolve the litigation before the national court and which it is in a position to provide.
EEC Treaty 85(1)
1 Citers
[ Bailii ]
Hofner and Elser v Macrotron (Judgment) C-41/90; [1991] E C R I-1979; [1991] EUECJ C-41/90
23 Apr 1991
ECJ
European, Commercial
Europa A public employment agency engaged in the business of employment procurement may be classified as an undertaking for the purpose of applying the Community competition rules since, in the context of competition law, that classification applies to every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed.
As an undertaking entrusted with the operation of services of general economic interest, a public employment agency engaged in employment procurement activities is, pursuant to Article 90(2) of the Treaty, subject to the prohibition contained in Article 86 of the Treaty, so long as the application of that provision does not obstruct the performance of the particular task assigned to it. A Member State which has granted it an exclusive right to carry on that activity is in breach of Article 90(1) of the Treaty where it creates a situation in which that agency cannot avoid infringing Article 86 of the Treaty. That is the case, in particular, where the following conditions are satisfied: - the exclusive right extends to executive recruitment activities; - the public employment agency is manifestly incapable of satisfying demand prevailing on the market for such activities; - the actual pursuit of those activities by private recruitment consultants is rendered impossible by the maintenance in force of a statutory provision under which such activities are prohibited and non-observance of that prohibition renders the contracts concerned void; - the activities in question may extend to the nationals or to the territory of other Member States. 3. The provisions of the Treaty on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State and therefore a recruitment consultant in a Member State may not rely on Articles 7 and 59 of the Treaty regarding the procurement of nationals of that Member State for posts in undertakings in the same State.
1 Citers
[ Bailii ]
AKZO Chemie BV v Commission of the European Communities C-62/86; [1993] 5 CMLR 215; [1986] EUECJ C-62/86R; [1991] EUECJ C-62/86; [1991] ECR 1-3359
3 Jul 1991
ECJ
European, Commercial
Europa Regard for the rights of the defence requires that the undertaking concerned shall have been enabled to make known effectively its point of view on the documents relied upon by the Commission in making the findings on which its decision is based. In examining the possibly dominant position of an undertaking in a particular market, the possibilities of competition must be judged in the context of the market comprising the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products. Very large market shares are usually evidence of the existence of a dominant position. The concept of abuse is objective, relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, by recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
1 Citers
[ Bailii ] - [ Bailii ]
Merci Convenzionali Porto di Genova v Siderurgica Gabrielli (Judgment) C-179/90; [1991] EUECJ C-179/90
10 Dec 1991
ECJ
European, Commercial
ECJ 1. The concept of worker within the meaning of Article 48 of the Treaty pre-supposes that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. That description is not affected by the fact that the worker, whilst being linked to the undertaking by a relationship of employment, is linked to other workers by a relationship of association.
2. Although the simple fact of creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not as such incompatible with Article 86 of the Treaty, a State is in breach of those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, cannot avoid abusing its dominant position or when such rights are liable to create a situation such that it is induced to commit such abuses.
Such is the case when an undertaking to which a monopoly to perform dock work has been granted is induced either to demand payment for services which have not been requested, to charge disproportionate prices, to refuse to have recourse to modern technology or to grant price reductions to certain consumers and at the same time to offset such reductions by an increase in the charges to other consumers.
3. A national measure which has the effect of facilitating the abuse of a dominant position capable of affecting trade between Member States is normally incompatible with Article 30 of the Treaty in so far as it has the effect of making more difficult and hence of impeding the importation of goods from other Member States.
4. Even within the framework of Article 90 of the Treaty, the provisions of Articles 30, 48 and 86 of the Treaty have direct effect and give rise for individuals to rights which the national courts must protect.
5. Dock work is not, in principle, a service of general economic interest exhibiting special characteristics, as compared with the general economic interest of other economic activities, which might bring it within the field of application of Article 90(2) of the Treaty. In any case, the fact that the public authorities have entrusted an undertaking with the operation of services of general economic interest does not, by virtue of the aforesaid provision, absolve it from compliance with the rules of the Treaty unless the application of those rules may obstruct the performance of the particular tasks assigned to it and unless the interests of the Community are not affected.
1 Citers
[ Bailii ]
BASF v Commission T-4/89; [1991] EUECJ T-4/89
17 Dec 1991
ECFI
European, Commercial
Europa Competition - Concepts of agreement and concerted practice - Collective responsibility
[ Bailii ]
