Keywords
Summary

Keywords

1 . COMPETITION - AGREEMENTS - CLAUSE PROHIBITING EXPORTS - NOT PERMITTED

( EEC TREATY , ART . 85 ( 1 ))

2 . COMPETITION - AGREEMENTS - PROHIBITION - BASIS

( EEC TREATY , ART . 85 )

3 . COMPETITION - COMMUNITY RULES - INFRINGEMENTS - COMMITTED INTENTIONALLY - CONCEPT

( REGULATION NO 17 OF THE COUNCIL , ART . 15 )

4 . COMPETITION - COMMUNITY RULES - INFRINGEMENT CONSTITUTED BY A PROHIBITION ON EXPORTS - GRAVITY - PENALTY

( REGULATION NO 17 OF THE COUNCIL , ART . 15 )

Summary

1 . BY ITS VERY NATURE A CLAUSE PROHIBITING EXPORTS CONSTITUTES A RESTRICTION ON COMPETITION , WHETHER IT IS ADOPTED AT THE INSTIGATION OF THE SUPPLIER OR OF THE CUSTOMER . THE FACT THAT RESELLERS PREFER TO LIMIT THEIR COMMERCIAL OPERATIONS TO MORE RESTRICTED MARKETS , WHETHER REGIONAL OR NATIONAL , CANNOT JUSTIFY THE FORMAL ADOPTION OF CLAUSES PROHIBITING EXPORTS , EITHER IN PARTICULAR CONTRACTS OR IN CONDITIONS OF SALE , ANY MORE THAN THE DESIRE OF THE PRODUCER TO WALL OFF SECTIONS OF THE COMMON MARKET .

2 . IN PROHIBITING AGREEMENTS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES AND WHICH HAVE AS THEIR OBJECT OR EFFECT THE RESTRICTION OF COMPETITION ARTICLE 85 ( 1 ) OF THE TREATY DOES NOT REQUIRE PROOF THAT SUCH AGREEMENTS HAVE IN FACT APPRECIABLY AFFECTED SUCH TRADE , WHICH WOULD MOREOVER BE DIFFICULT IN THE MAJORITY OF CASES TO ESTABLISH FOR LEGAL PURPOSES , BUT MERELY REQUIRES THAT IT BE ESTABLISHED THAT SUCH AGREEMENTS ARE CAPABLE OF HAVING THAT EFFECT .

3 . AN INFRINGEMENT OF THE COMMUNITY RULES ON COMPETITION IS CONSIDERED TO HAVE BEEN COMMITTED INTENTIONALLY AND IN DISREGARD OF THE PROVISIONS OF THE TREATY IF THE PERSON CONCERNED IS AWARE THAT THE ACT IN QUESTION HAD AS ITS OBJECT THE RESTRICTION OF COMPETITON . IT IS IRRELEVANT TO ESTABLISH WHETHER THE PERSON CONCERNED ALSO KNEW THAT HE WAS INFRINGING A PROVISION OF THE TREATY . IN THIS CONNEXION THE OPINION OF A LEGAL ADVISER WHO WAS CONSULTED BY THE PERSON CONCERNED DOES NOT CONSTITUTE A MITIGATING FACTOR .

4 . THE CLAUSES PROHIBITING EXPORTS CONSTITUTE A FORM OF RESTRICTION ON COMPETITION WHICH BY ITS VERY NATURE JEOPARDIZES TRADE BETWEEN MEMBER STATES . CONSEQUENTLY , THE COMMISSION WAS ENTITLED TO CONSIDER THAT THE INFRINGEMENT ENTAILED A DEGREE OF GRAVITY AND TO TAKE THIS INTO ACCOUNT WITH REGARD TO THE PROVISIONS OF ARTICLE 15 OF REGULATION NO 17 .