ECJ 1. An administrative letter despatched without publication as laid down in regulation no 17 informing the undertaking concerned of the commission’s opinion that there is no need for it to take action in respect of the agreements in question and that the file on the case may therefore be closed constitutes neither a decision granting negative clearance nor a decision applying article 85 (3) of the eec treaty within the meaning of articles 2 and 6 of regulation no 17.
such a letter does not have the result of preventing national courts before which the agreements in question are alleged to be incompatible with article 85 of the treaty from reaching a different finding as regards the agreements in question on the basis of the information available to them. Whilst it does not bind the national courts, the opinion transmitted in such a letter nevertheless constitutes a factor which the national courts may take into account in examining whether the agreements in question are in accordance with the provisions of article 85.
2. An administrative letter informing the person concerned that the com- mission is of the opinion that there are no grounds for it to take action with regard to agreements which have been notified pursuant to the provisions of article 85 (1) of the eec treaty has the effect of terminating the period of provisional validity accorded from the date of notification to agreements made prior to 13 march 1962 notified within the period laid down in article 5 (1) of regulation no 17 or exempted from notification. In fact, the maintenance of the provisional protection from which notified old agreements benefit is no longer justified from the date on which the commission informs the parties concerned that it has decided to close the file on the case concerning them. There is, therefore, no longer any reason to release national courts, before which the direct effect of the prohibition in article 85 (1) is relied upon, from the duty of giving judgment.
3. Selective distribution systems consti- tute an aspect of competition which accords with article 85 (1) of the eec treaty provided that re-sellers are chosen on the basis of objective criteria of a qualitative nature relating to the qualifications of the re-seller, his staff and his trading premises, and that such conditions are laid down uniformly for all potential re-sellers and are not applied in a discrimi- natory fashion.
it follows that, in principle, a selective distribution network which relies on tests for admission to the system which go beyond simple, objective qualitative selection falls within the prohibition laid down in article 85 (1) especially when it is based on quantitative selection criteria.
4. To decide whether an agreement may affect trade between member states it is necessary to decide whether it is possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between member states.
5. In order to decide whether an agreement is to be considered as prohibited by reason of the distortion of competition which is its object or its effect, it is necessary to examine the competition within the actual context in which it would occur in the absence of the agreement in dispute. To that end, it is appropriate to take into account in particular the nature and quantity, limited or otherwise, of the products covered by the agreement, the position and the importance of the parties on the market for the products concerned, and the isolated nature of the disputed agreement or, alternatively, its position in a series of agreements. Although not necessarily decisive, the existence of similar contracts is a circumstance which, together with others, is capable of being a factor in the economic and legal context within which the contract must be judged.
Citations:
C-99/79, R-99/79, [1980] EUECJ R-99/79
Links:
European
Updated: 21 June 2022; Ref: scu.214936