Keywords
Summary

Keywords

1 Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Prejudicial to competition - Luxury cosmetic products - Contract for distribution within the Community - Obligation to resell only to customers established in the contractual territory and prohibition of reselling outside that territory - Not permissible

(EC Treaty, Art. 85(1))

2 Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Effect on trade between Member States - Criteria - Insignificant effect on market - Agreement not prohibited

(EC Treaty, Art. 85(1))

3 Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Prejudicial to competition - Effect on trade between Member States - Distribution contract intended to apply in a territory outside the Community - Obligation to export to a non-member country and prohibition of re-importation into and marketing in the Community - No anti-competitive purpose - Appraisal of anti-competitive effects by the national court - Existence of a selective distribution network for distribution within the Community covered by an exemption decision - Not relevant

(EC Treaty, Art. 85(1) and (3))

Summary

4 An agreement between a producer and a reseller intended to apply within the Community and to deprive a reseller of his commercial freedom to choose his customers by requiring him to sell only to customers established in the contractual territory is restrictive of competition within the meaning of Article 85(1) of the Treaty.

Similarly, an agreement which requires a reseller not to resell contractual products outside the contractual territory has as its object the exclusion of parallel imports within the Community and consequently restriction of competition in the common market. Such provisions, in contracts for the distribution of products within the Community, therefore constitute by their very nature a restriction of competition.

5 If an agreement, decision or practice is to be capable of affecting 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 of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant.

The effect which an agreement might have on trade between Member States is to be appraised in particular by reference to the position and the importance of the parties on the market for the products concerned. Thus, even an agreement imposing absolute territorial protection may escape the prohibition laid down in Article 85 of the Treaty if it affects the market only insignificantly, regard being had to the weak position of the persons concerned on the market in the products in question.

6 A distribution agreement intended to apply in a territory outside the Community, imposing an obligation to export products to a non-member country and a prohibition of re-importing such products into the Community and of marketing them there cannot be regarded as having the object of appreciably restricting competition within the common market or as being capable of affecting, as such, trade between Member States and cannot therefore be contrary, by its very nature, to Article 85(1) of the Treaty. The stipulations of such an agreement must be construed not as being intended to exclude parallel imports and marketing of the contractual product within the Community but as being designed to enable the producer to penetrate a market outside the Community by supplying a sufficient quantity of contractual products to that market.

Although those provisions do not, by their very nature, have as their object the prevention, restriction or distortion of competition within the common market within the meaning of Article 85(1) of the Treaty, it is, however, for the national court to determine whether they have that effect, taking account of their economic and legal context.

Article 85(1) of the Treaty precludes a supplier established in a Member State of the Community from imposing on a distributor established in another Member State to which the supplier entrusts the distribution of his products in a territory outside the Community a prohibition of making any sales in any territory other than the contractual territory, including the territory of the Community, either by direct marketing or by re-exportation from the contractual territory, if that prohibition has the effect of preventing, restricting or distorting competition within the Community and is liable to affect the pattern of trade between Member States. This might be the case where the Community market in the products in question is characterised by an oligopolistic structure or by an appreciable difference between the prices charged for the contractual product within the Community and those charged outside the Community and where, in view of the position occupied by the supplier of the products at issue and the extent of the supplier's production and sales in the Member States, the prohibition entails a risk that it might have an appreciable effect on the pattern of trade between Member States such as to undermine attainment of the objectives of the common market.

Provisions intended to prevent a distributor from selling directly in the Community and re-exporting to the Community contractual products which the distributor has undertaken to sell in non-member countries do not escape the prohibition laid down in Article 85(1) of the Treaty on the ground that the Community supplier of the products concerned distributes those products within the Community through a selective distribution network covered by an exemption decision under Article 85(3) of the Treaty.