Keywords
Summary

Keywords

1 . COMPETITION - RESTRICTIVE AGREEMENTS - NOTIFICATION - NON-APPLICATION OF EXCLUSIVE DEALING PROVISIONS - LACK OF FORMAL AMENDMENT OF THE AGREEMENT - APPRAISAL BY THE COMMISSION IN ACCORDANCE WITH THE TERMS NOTIFIED TO IT

( REGULATION NO 17 OF THE COUNCIL )

2 . COMPETITION - ADMINISTRATIVE PROCEDURE - DELEGATION OF POWER TO SIGN - PERMISSIBILITY

3 . COMPETITION - ADMINISTRATIVE PROCEDURE - HEARINGS - SIMULTANEOUS PRESENCE OF ALL THE PERSONS APPOINTED BY THE COMMISSION - OBLIGATION - NONE

( REGULATION NO 99/63 OF THE COMMISSION , ART . 9 ( 1 ))

4 . COMPETITION - ADMINISTRATIVE PROCEDURE - HEARINGS - HEARING OF CERTAIN PERSONS - DISCRETIONARY POWER OF THE COMMISSION

( REGULATION NO 99/63 OF THE COMMISSION , ART . 7 )

5 . MEASURES ADOPTED BY THE INSTITUTIONS - STATEMENT OF REASONS - OBLIGATION - SCOPE

( EEC TREATY , ART . 190 )

6 . COMPETITION - ADMINISTRATIVE PROCEDURE - REGARD FOR THE RIGHTS OF THE DEFENCE - OBLIGATION ON THE PART OF THE COMMISSION TO MAKE THE FILE AVAILABLE - NONE

( REGULATION NO 99/63 OF THE COMMISSION )

7 . COMPETITION - RESTRICTIVE AGREEMENTS - SYSTEM OF RESALE PRICE MAINTENANCE - INFRINGEMENT OF ARTICLE 85 ( 1 ) - JUSTIFICATION - DEFENCE AGAINST UNFAIR PRACTICES - NOT PERMISSIBLE

( EEC TREATY , ART . 85 ( 1 ))

8 . COMPETITION - COMMUNITY RULES - APPLICATION ON THE BASIS OF NATIONAL LEGISLATIVE OR JUDICIAL PRACTICES - NOT PERMISSIBLE

( EEC TREATY , ART . 85 )

9 . COMPETITION - RESTRICTIVE AGREEMENTS - SYSTEM OF RESALE PRICE MAINTENANCE - INFRINGEMENT OF ARTICLE 85 ( 1 ) - JUSTIFICATION - SPECIAL FEATURES OF THE RELEVANT MARKET - NOT PERMISSIBLE

( EEC TREATY , ART . 85 ( 1 ) ( A ) AND ( B ))

10 . COMPETITION - RESTRICTIVE AGREEMENTS - EFFECT ON TRADE BETWEEN MEMBER STATES - EXISTENCE OF A LINGUISTIC COMMUNITY ON THE TERRITORY OF A NUMBER OF MEMBER STATES - APPLICATION OF ARTICLE 85 NOT EXCLUDED

( EEC TREATY , ART . 85 )

11 . COMPETITION - ADMINISTRATIVE PROCEDURE - PURPOSE - POSSIBILITY FOR UNDERTAKINGS TO ADAPT THEIR PRACTICES TO THE RULES OF THE TREATY - PROPOSALS FOR EXEMPTION - POWERS OF THE COMMISSION

( EEC TREATY , ART . 85 ( 3 ))

Summary

1 . WHERE CERTAIN UNDERTAKINGS HAVE NOTIFIED TO THE COMMISSION AN AGREEMENT WHICH CONTAINS EXCLUSIVE DEALING PROVISIONS , THEY CANNOT MAINTAIN THAT FOR A LONG TIME PAST SUCH PROVISIONS HAVE NO LONGER BEEN APPLIED AND SHOULD THEREFORE BE REGARDED AS HAVING LAPSED . THE ONLY MEANS OF COMPLYING WITH THE RULES OF COMPETITION CONTAINED IN THE TREATY IS TO MAKE A FORMAL AMENDMENT TO THE AGREEMENT AND TO NOTIFY IT IN THE MANNER REQUIRED BY REGULATION NO 17 . WHERE THERE IS NO SUCH AMENDMENT , THE ONLY COURSE OPEN TO THE COMMISSION IS TO APPRAISE THE AGREEMENT IN ACCORDANCE WITH THE TERMS ORIGINALLY NOTIFIED TO IT .

2 . THE DELEGATION OF POWER TO SIGN IS THE NORMAL METHOD BY WHICH THE COMMISSION EXERCISES ITS POWERS .

3 . ARTICLE 9 ( 1 ) OF REGULATION NO 99/63 PROVIDES THAT HEARINGS ARE TO BE CONDUCTED BY THE PERSONS APPOINTED BY THE COMMISSION FOR THAT PURPOSE . ON THE OTHER HAND , IN THE EVENT OF SEVERAL PERSONS ' HAVING BEEN APPOINTED TO FOLLOW A GIVEN CASE , THAT PROVISION IMPOSES NO OBLIGATION AS REGARDS THE SIMULTANEOUS PRESENCE AT HEARINGS OF ALL THE PERSONS APPOINTED OR CERTAIN OF THEM .

4 . IT APPEARS FROM ARTICLE 7 OF REGULATION NO 99/63 THAT THE COMMISSION HAS A REASONABLE MARGIN OF DISCRETION TO DECIDE HOW EXPEDIENT IT MAY BE TO HEAR PERSONS WHOSE EVIDENCE MAY BE RELEVANT TO THE INQUIRY .

5 . ALTHOUGH , UNDER ARTICLE 190 OF THE TREATY , THE COMMISSION IS REQUIRED TO STATE THE FACTUAL MATTERS JUSTIFYING THE ADOPTION OF A DECISION , TOGETHER WITH THE LEGAL CONSIDERATIONS WHICH HAVE LED TO ITS ADOPTING IT , THE ARTICLE DOES NOT REQUIRE THE COMMISSION TO DISCUSS ALL THE MATTERS OF FACT AND OF LAW WHICH MAY HAVE BEEN DEALT WITH DURING THE ADMINISTRATIVE PROCEEDINGS . THE STATEMENT OF THE REASONS ON WHICH A DECISION ADVERSELY AFFECTING A PERSON IS BASED MUST ALLOW THE COURT TO EXERCISE ITS POWER OF REVIEW AS TO THE LEGALITY OF THE DECISION AND MUST PROVIDE THE PERSON CONCERNED WITH THE INFORMATION NECESSARY TO ENABLE HIM TO DECIDE WHETHER OR NOT THE DECISION IS WELL FOUNDED .

6 . ALTHOUGH 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 , THERE ARE NO PROVISIONS WHICH REQUIRE THE COMMISSION TO DIVULGE THE CONTENTS OF ITS FILES TO THE PARTIES CONCERNED .

7 . THE FACT THAT A SYSTEM OF RESALE PRICE MAINTENANCE MAY HAVE THE INCIDENTAL EFFECT OF PREVENTING AN UNFAIR PRACTICE SUCH AS ' ' LOSS-LEADING ' ' IS NOT A SUFFICIENT REASON FOR FAILING TO APPLY ARTICLE 85 ( 1 ) TO A WHOLE SECTOR OF THE MARKET SUCH AS THE BOOK TRADE . IT IS OPEN TO UNDERTAKINGS WHICH MAY HAVE SUFFERED INJURY AS A RESULT OF UNFAIR COMPETITION TO HAVE RECOURSE TO LEGISLATION ON TRADE PRACTICES SUCH AS EXISTS IN ONE FORM OR ANOTHER IN ALL THE MEMBER STATES , WHICH PROVIDES REMEDIES AGAINST SUCH ABUSES . ON THE OTHER HAND , THE FACT THAT SUCH ABUSES EXIST CANNOT IN ANY CIRCUMSTANCES JUSTIFY AN INFRINGEMENT OF THE COMMUNITY RULES ON COMPETITION .

8 . NATIONAL LEGISLATIVE OR JUDICIAL PRACTICES , EVEN ON THE SUPPOSITION THAT THEY ARE COMMON TO ALL THE MEMBER STATES , CANNOT PREVAIL IN THE APPLICATION OF THE COMPETITION RULES SET OUT IN THE TREATY . THE SAME REASONING MUST APPLY WITH EVEN GREATER FORCE IN RELATION TO PRACTICES OF PRIVATE UNDERTAKINGS , EVEN WHERE THEY ARE TOLERATED OR APPROVED BY THE AUTHORITIES OF A MEMBER STATE .

9 . THE SPECIAL FEATURES OF THE BOOK MARKET DO NOT PERMIT NATIONAL ASSOCIATIONS OF PUBLISHERS AND BOOKSELLERS IN TWO MEMBER STATES TO SET UP , IN THEIR MUTUAL RELATIONS , A RESTRICTIVE SYSTEM WHOSE EFFECT IS TO DEPRIVE DISTRIBUTORS OF ALL FREEDOM OF ACTION AS REGARDS THE FIXING OF THE SELLING PRICE UP TO THE LEVEL OF THE FINAL PRICE TO THE CONSUMER . SUCH AN ARRANGEMENT INFRINGES ARTICLE 85 ( 1 ) ( A ), WHICH EXPRESSLY PROHIBITS ALL AGREEMENTS WHICH ' ' DIRECTLY OR INDIRECTLY FIX PURCHASE OR SELLING PRICES ' ' . FURTHERMORE , WHERE THE SYSTEM OF RESALE PRICE MAINTENANCE LAID DOWN IN THE AGREEMENT ALLOWS EACH OF THE TWO ASSOCIATIONS TO CONTROL OUTLETS AS FAR AS THE LAST STAGE IN THE OTHER MEMBER STATE FROM THE POINT OF VIEW OF PRICE-FIXING AND THUS TO MAKE IMPOSSIBLE THE INTRODUCTION OF SALES METHODS CAPABLE OF ALLOWING CONSUMERS TO BE SUPPLIED IN ECONOMICALLY MORE FAVOURABLE CONDITIONS , THE ASSOCIATIONS ARE ALSO BROUGHT INTO CONFLICT WITH ARTICLE 85 ( 1 ) ( B ).

10 . THE EXISTENCE OF A LINGUISTIC COMMUNITY BETWEEN ONE MEMBER STATE AND PART OF THE TERRITORY OF ANOTHER MEMBER STATE DOES NOT PREVENT THE APPLICATION OF ARTICLE 85 OF THE TREATY WHICH EXPRESSLY REFERS TO TRADE BETWEEN MEMBER STATES .

11 . THE PURPOSE OF THE PRELIMINARY ADMINISTRATIVE PROCEDURE IS TO PREPARE THE WAY FOR THE COMMISSION ' S DECISION ON THE INFRINGEMENT OF THE RULES OF COMPETITION , BUT THAT THE PROCEDURE ALSO PRESENTS AN OPPORTUNITY FOR THE UNDERTAKINGS CONCERNED TO ADAPT THE PRACTICES AT ISSUE TO THE RULES OF THE TREATY . IN THE EVENT OF AN EXEMPTION ' S BEING APPLIED FOR UNDER ARTICLE 85 ( 3 ) IT IS IN THE FIRST PLACE FOR THE UNDERTAKINGS CONCERNED TO PRESENT TO THE COMMISSION THE EVIDENCE INTENDED TO ESTABLISH THE ECONOMIC JUSTIFICA TION FOR AN EXEMPTION AND , IF THE COMMISSION HAS OBJECTIONS TO RAISE , TO SUBMIT ALTERNATIVES TO IT . ALTHOUGH IT IS TRUE THAT THE COMMISSION , FOR ITS PART , MAY GIVE THE UNDERTAKINGS INDICATIONS AS REGARDS ANY POSSIBLE SOLUTIONS , IT IS NOT LEGALLY REQUIRED TO DO SO , STILL LESS IS IT BOUND TO ACCEPT PROPOSALS WHICH IT DEEMS INCOMPATIBLE WITH THE CONDITIONS LAID DOWN IN ARTICLE 85 ( 3 ).