Keywords
Summary

Keywords

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1. Agriculture ° Rules on competition ° Regulation No 26 ° Scope ° Products not listed in Annex II to the Treaty ° Fertilizers and plant protection products ° Exclusion

(EEC Treaty, Art. 42 and Annex II; Council Regulation No 26)

2. Competition ° Agreements, decisions and concerted practices ° Prejudicial to competition ° Cooperative purchasing association ° Prohibition on members participating in other forms of organized cooperation in competition with it ° Assessment criteria

(EEC Treaty, Art. 85(1))

3. Competition ° Dominant position ° Definition

(EEC Treaty, Art. 86)

4. Competition ° Dominant position ° Cooperative purchasing association ° Prohibition on members participating in other forms of organized cooperation in competition with it ° Abuse ° Assessment criteria

(EEC Treaty, Art. 86)

5. Competition ° Agreements, decisions and concerted practices ° Dominant position ° Effect on intra-Community trade ° Assessment criteria

(EEC Treaty, Arts 85 and 86)

6. Competition ° Community rules ° Application by the national courts ° Assessment of the lawfulness of an agreement which has been notified ° Conditions

(EEC Treaty, Art. 85)

Summary

1. The scope of Regulation No 26/62, adopted on the basis of Articles 42 and 43 of the Treaty and applying certain rules of competition to production of and trade in agricultural products, was restricted by Article 1 thereof to production of and trade in the products listed in Annex II to the Treaty. That regulation cannot therefore be applied to trade in a product which does not fall within Annex II even if it is a substance ancillary to the production of another product which itself falls within that annex. In order for the regulation to apply to fertilizers and plant protection products, those products would themselves have to fall within Annex II to the Treaty. Since they do not, fertilizers and plant protection products do not fall within the scope of the derogation from the competition rules which is laid down in Article 42 of the Treaty and Regulation No 26/62.

That conclusion is not called into question by the fact that Directive 91/414 on the placing of plant protection products on the market was adopted specifically on the basis of Article 43 of the Treaty. Article 42 is a derogating provision, the scope of which, as of Regulation No 26/62, cannot implicitly be widened by adoption of measures based on Article 43 of the Treaty, a provision which confers on the Council the power to adopt measures for the purpose of implementing the common agricultural policy.

2. A provision in the statutes of a cooperative purchasing association, forbidding its members to participate in other forms of organized cooperation which are in direct competition with it, is not caught by the prohibition in Article 85(1) of the Treaty, so long as the abovementioned provision is restricted to what is necessary to ensure that the cooperative functions properly and maintains its contractual power in relation to producers.

3. The dominant position referred to in Article 86 is a position of economic strength held by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. In general the existence of a dominant position derives from a combination of several factors which, taken separately, are not necessarily decisive.

4. Even if a cooperative purchasing association holds a dominant position on a given market, an amendment of its statutes prohibiting its members from participating in other forms of organized cooperation which are in direct competition with it does not constitute an abuse of a dominant position contrary to Article 86 of the Treaty, so long as the abovementioned provision is limited to what is necessary to ensure that the cooperative functions properly and maintains its contractual power in relation to producers.

5. In order that an agreement between undertakings, as well as a dominant position, may affect trade between Member States, it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the achievement of the aim of a single market in all the Member States. Thus, in the case of a cooperative purchasing association which forbids its members to participate in other forms of organized cooperation which are in direct competition with it, intra-Community trade may be affected, within the meaning of Articles 85(1) and 86 of the Treaty, even where the basic products concerned are in part imported from non-member countries.

6. A national court has jurisdiction to rule on the lawfulness of an agreement notified to the Commission where that court considers that the conditions for application of Article 85(1) of the Treaty are not satisfied and there is scarcely any risk of the Commission taking a different decision.