61987J0279

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1 . Competition - Agreements, decisions and concerted practices - Exclusive distribution agreement - Control and hindrance of parallel imports - Restriction of competition

( EEC Treaty, Art . 85(1 ) )

2 . Competition - Community rules - Infringements - Committed intentionally - Concept

( Regulation No 17 of the Council, Art . 15 )

3 . Competition - Fines - Amount - Determination - Turnover taken into account

( Regulation No 17 of the Council, Art . 15(2 ) )

1 . According to settled case-law ( see, in particular, the judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten-Grundig v Commission (( 1966 )) ECR 299 ), the absolute territorial protection granted to a distributor under an exclusive distribution agreement, designed to enable parallel imports to be controlled and hindered, leads to separate national markets being maintained artificially, contrary to the Treaty, and is therefore such as to infringe Article 85(1 ) thereof .

2 . It is not necessary for an undertaking to have been aware that it was infringing the competition rules in the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the contested conduct had as its object the restriction of competition ( judgment of 11 July 1989 in Case 246/86 Belasco v Commission (( 1989 )) ECR 2117 ).

3 . Article 15(2 ) of Regulation No 17 contains no territorial limit in regard to the turnover of undertakings which have infringed the competition rules which is to be taken into account in determining the amount of the fine to be imposed on them, so that the Commission cannot be required to take account only of the total turnover realized on the market in which the infringement was committed .

In Case C-279/87

Tipp-Ex GmbH & Co . KG, Liederbach, represented by Ulrich Doerr, Rechtsanwalt, Frankfurt am Main ( Federal Republic of Germany ), with an address for service in Luxembourg at the Chambers of Jean Wagener, avocat, 10 A boulevard de la Foire,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Norbert Koch, assisted by Alexander Boehlke, Rechtsanwalt, Frankfurt am Main, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that Commission Decision 87/406/EEC of 10 July 1987 relating to a proceeding under Article 85 of the EEC Treaty ( IV/31.192 - Tipp-Ex and IV/31.507 - Tipp-Ex ( standard form contract ) ) is void,

THE COURT ( Fifth Chamber )

composed of : Sir Gordon Slynn, President of Chamber, M . Zuleeg, R . Joliet, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias,

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the applicant to pay the costs .