Keywords
Summary

Keywords

1 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - PROHIBITION - AGREEMENTS WHICH CONTINUE TO PRODUCE THEIR EFFECTS AFTER THEY HAVE FORMALLY CEASED TO BE IN FORCE - APPLICATION OF ARTICLE 85 OF THE EEC TREATY

( EEC TREATY ART . 85 )

2 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - AGREEMENTS CONCLUDED BETWEEN A DISTRIBUTION AGENCY AND THE MAJORITY OF PUBLISHERS - AGREEMENTS UNDER WHICH THE APPROVAL OF RETAIL SALES OUTLETS IS A MATTER FOR THE AGENCY - PROHIBITION

( EEC TREATY ART . 85 ( 1 ))

3 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - NEWSPAPERS AND PERIODICALS - SELECTIVE DISTRIBUTION SYSTEM - PERMISSIBILITY - CONDITIONS - NEWSPAPERS AND PERIODICALS - QUANTITATIVE SELECTION CRITERIA - PROHIBITION - EXEMPTION - POWERS OF THE COMMISSION - DISCRIMINATORY APPLICATION OF THE SYSTEM - PROHIBITION

( EEC TREATY ART . 85 ( 1 ) AND ( 3 ))

4 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - PRICE FIXING - PROHIBITION - NEWSPAPERS AND PERIODICALS - SELECTIVE DISTRIBUTION SYSTEM - EXEMPTION - POWERS OF THE COMMISSION

( EEC TREATY ART . 85 ( 1 ) AND ( 3 ))

Summary

1 . ARTICLE 85 IS APPLICABLE WHERE THE PARALLEL CONDUCT OF A NUMBER OF UNDERTAKINGS WAS DUE ORIGINALLY TO AN AGREEMENT AND WHERE IT CONTINUES AFTER THE TERMINATION OF THAT AGREEMENT WITHOUT ITS REPLACEMENT BY A NEW AGREEMENT . WITH REGARD TO AGREEMENTS WHICH ARE NO LONGER IN FORCE , IT IS SUFFICIENT , FOR ARTICLE 85 TO BE APPLICABLE , THAT THEY CONTINUE TO PRODUCE THEIR EFFECTS AFTER THEY HAVE FORMALLY CEASED TO BE IN FORCE . THE SYSTEM OF COMPETITION RULES ESTABLISHED BY ARTICLE 85 ET SEQ . OF THE EEC TREATY IS CONCERNED WITH THE ECONOMIC EFFECTS OF AGREEMENTS OR OF ANY COMPARABLE FORM OF CONCERTED PRACTICE OR COORDINATION RATHER THAN WITH THEIR LEGAL FORM .

2 . ARTICLE 85 ( 1 ) OF THE EEC TREATY APPLIES TO A SET OF AGREEMENTS BETWEEN AN AGENCY WHICH SPECIALIZES IN THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS IN ONE MEMBER STATE , THE MAJORITY OF THE PUBLISHERS OF NEWSPAPERS AND PERIODICALS WHO ARE ESTABLISHED IN THAT STATE AND A NUMBER OF PUBLISHERS ESTABLISHED IN OTHER MEMBER STATES , IF THE EFFECT OF THAT SET OF AGREEMENTS IS THAT IN PRACTICE THE APPROVAL OF RETAIL SALES OUTLETS IS A MATTER FOR THAT AGENCY OR A BODY SET UP BY IT WITHIN THE FRAMEWORK OF THE SAID AGREEMENTS .

3 . SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85 ( 1 ) OF THE EEC TREATY , PROVIDED THAT RE-SELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RE-SELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES IN CONNECTION WITH THE REQUIREMENTS FOR THE DISTRIBUTION OF THE PRODUCT AND THAT SUCH CRITERIA ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RE-SELLERS AND ARE NOT APPLIED IN A DISCRIMINATORY FASHION . SUCH A SYSTEM MAY BE ESTABLISHED FOR THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS , WITHOUT INFRINGING THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ), GIVEN THE SPECIAL NATURE OF THOSE PRODUCTS AS REGARDS THEIR DISTRIBUTION .

A SELECTIVE DISTRIBUTION SYSTEM FOR NEWSPAPERS AND PERIODICALS WHICH AFFECTS TRADE BETWEEN MEMBER STATES IS PROHIBITED BY ARTICLE 85 ( 1 ) OF THE TREATY IF RE-SELLERS ARE CHOSEN ON THE BASIS OF QUANTITATIVE CRITERIA . HOWEVER , THE COMMISSION MAY , WITHIN THE FRAMEWORK OF AN APPLICATION FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), EXAMINE WHETHER , IN A PARTICULAR CASE , CRITERIA OF THAT KIND MAY BE JUSTIFIED .

IN ANY EVENT A SYSTEM OF THAT KIND IS PROHIBITED BY ARTICLE 85 ( 1 ) IF THE CRITERIA DETERMINING THE CHOICE OF RE-SELLERS ARE APPLIED LESS STRICTLY IN RELATION TO UNDERTAKINGS WHICH ARE PART OF A PARTICULAR GROUP OF UNDERTAKINGS THAN IN RELATION TO OTHER RETAILERS .

4 . PROVISIONS WHICH FIX THE PRICES TO BE OBSERVED IN CONTRACTS WITH THIRD PARTIES CONSTITUTE , OF THEMSELVES , A RESTRICTION ON COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE EEC TREATY . WHERE AN AGREEMENT WHICH ESTABLISHES A SELECTIVE DISTRIBUTION SYSTEM AND WHICH AFFECTS TRADE BETWEEN MEMBER STATES INCLUDES SUCH A PROVISION , AN EXEMPTION FROM THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ) OF THE EEC TREATY MAY BE GRANTED ONLY BY MEANS OF A DECISION ADOPTED BY THE COMMISSION IN THE CONDITIONS LAID DOWN BY ARTICLE 85 ( 3 ).

IF , IN SO FAR AS THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS IS CONCERNED , THE FIXING OF THE RETAIL PRICE BY PUBLISHERS CONSTITUTES THE SOLE METHOD BY WHICH A WIDE SELECTION OF NEWSPAPERS AND PERIODICALS CAN BE MADE AVAILABLE TO READERS , THE COMMISSION MUST TAKE ACCOUNT OF THOSE FACTORS WHEN EXAMINING AN AGREEMENT FOR THE PURPOSES OF ARTICLE 85 ( 3 ).