Keywords
Summary

Keywords

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1 . COMPETITION - CARTELS - EXCLUSIVE DEALING AGREEMENT - TRANSFER OF THE CONCESSION FROM A PARENT COMPANY TO ITS ECONOMICALLY DEPENDENT SUBSIDIARY - APPLICATION OF THE PROHIBITION IN ARTICLE 85 ( 1 )

2 . COMPETITION - CARTELS - PARTICIPATION IN AN AGREEMENT BY AN UNDERTAKING SITUATE IN A THIRD COUNTRY - APPLICATION OF THE PROHIBITION IN ARTICLE 85 ( 1 ) - CONDITIONS

3 . COMPETITION - CARTELS - EXCLUSIVE DEALING AGREEMENTS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES - CONCEPT

( EEC TREATY, ARTICLE 85 )

4 . COMPETITION - CARTELS - APPLICATION OF THE PROHIBITION IN ARTICLE 85 ( 1 ) - CRITERIA

5 . COMPETITION - CARTELS - PROHIBITION - COLLECTIVE EXEMPTION UNDER REGULATION NO 67/67 OF THE COMMISSION - APPLICATION - LIMIT

( REGULATION NO 67/67, ARTICLES 1 AND 2 )

6 . COMPETITION - CARTELS - NULLITY UNDER ARTICLE 85 ( 2 ) - ABSOLUTE CHARACTER - AGREEMENT DEVOID OF EFFECT

7 . COMPETITION - IMPORT OR EXPORT TRANSACTION - NO INTERFERENCE WITH COMPETITION

( EEC TREATY, ARTICLE 85 )

Summary

1 . AN EXCLUSIVE DEALING AGREEMENT DOES NOT FALL UNDER THE PROHIBITION IMPOSED BY ARTICLE 85 ( 1 ) OF THE TREATY MERELY BECAUSE THE CONCESSION GRANTED UNDER THAT AGREEMENT HAS BEEN TRANSFERRED FROM A PARENT COMPANY TO ITS SUBSIDIARY, WHICH, ALTHOUGH HAVING A SEPARATE LEGAL PERSONALITY, ENJOYS NO ECONOMIC INDEPENDENCE .

2 . ( A ) IF THE AGREEMENT IS OPERATIVE ON THE TERRITORY OF THE COMMON MARKET, THE FACT THAT ONE OF THE UNDERTAKINGS WHICH ARE PARTIES TO IT IS SITUATED IN A THIRD COUNTRY DOES NOT PREVENT THE APPLICATION OF ARTICLE 85 OF THE EEC TREATY .

( B ) AN EXCLUSIVE DEALING AGREEMENT ENTERED INTO BETWEEN A PRODUCER WHO IS SUBJECT TO THE LAW OF A THIRD COUNTRY AND A DISTRIBUTOR ESTABLISHED IN THE COMMON MARKET IS CAUGHT BY ARTICLE 85 WHEN, DE JURE OR DE FACTO, IT PREVENTS THE DISTRIBUTOR FROM RE-EXPORTING THE PRODUCTS IN QUESTION TO OTHER MEMBER STATES, OR PREVENTS THE PRODUCTS FROM BEING IMPORTED FROM OTHER MEMBER STATES INTO THE PROTECTED AREA AND FROM BEING DISTRIBUTED THEREIN BY PERSONS OTHER THAN THE EXCLUSIVE DEALER OR HIS CUSTOMERS .

( C ) IN ORDER TO DETERMINE WHETHER THIS IS THE POSITION, ACCOUNT MUST BE TAKEN NOT ONLY OF THE RIGHTS AND OBLIGATIONS ARISING FROM THE CLAUSES OF THE AGREEMENT, BUT ALSO OF THE ECONOMIC AND LEGAL CONDITIONS UNDER WHICH IT OPERATES AND PARTICULARLY OF THE EXISTENCE OF ANY SIMILAR AGREEMENTS ENTERED INTO BY THE SAME PRODUCER WITH EXCLUSIVE DEALERS ESTABLISHED IN OTHER MEMBER STATES .

3 . ( A ) AN EXCLUSIVE DEALING AGREEMENT IS LIABLE TO AFFECT TRADE BETWEEN MEMBER STATES, AND MAY HAVE THE EFFECT OF IMPEDING COMPETITION IF, OWING TO THE COMBINED EFFECTS OF THE AGREEMENT AND OF NATIONAL LEGISLATION ON UNFAIR COMPETITION, THE DEALER IS ABLE TO PREVENT PARALLEL IMPORTS FROM OTHER MEMBER STATES FROM ENTERING THE TERRITORY COVERED BY THE AGREEMENT .

( B ) THE DEALER MAY, THEREFORE, RELY ON SUCH LEGISLATION ONLY IF THE ALLEGED UNFAIRNESS OF HIS COMPETITORS' BEHAVIOUR ARISES FROM FACTORS OTHER THAN THEIR HAVING EFFECTED PARALLEL IMPORTS .

4 . TO COME WITHIN THE PROHIBITION IMPOSED BY ARTICLE 85 AN AGREEMENT MUST AFFECT TRADE BETWEEN MEMBER STATES AND THE FREE PLAY COMPETITION TO AN APPRECIABLE EXTENT . IN ORDER TO ESTABLISH WHETHER SUCH IS THE CASE, THESE FACTORS MUST BE CONSIDERED IN THE LIGHT OF THE SITUATION WHICH WOULD HAVE EXISTED BUT FOR THE AGREEMENT IN QUESTION .

5 . THE COMBINED EFFECT OF THE PROVISIONS OF ARTICLES 1 AND 2 OF REGULATION NO 67/67 OF THE COMMISSION IS THAT THE COLLECTIVE EXEMPTION CONFERRED BY THAT REGULATION DOES NOT APPLY TO AN AGREEMENT PROHIBITING THE EXCLUSIVE DEALER FROM RE-EXPORTING THE PRODUCTS IN QUESTION TO OTHER MEMBER STATES .

6 . SINCE THE NULLITY REFERRED TO IN ARTICLE 85 ( 2 ) IS ABSOLUTE, AN AGREEMENT WHICH IS NULL AND VOID BY VIRTUE OF THIS PROVISION HAS NO EFFECT AS BETWEEN THE CONTRACTING PARTIES AND CANNOT BE SET UP AGAINST THIRD PARTIES .

7 . AN IMPORT OR EXPORT TRANSACTION HAS NOT AS SUCH THE OBJECT OR EFFECT OF INTERFERING WITH COMPETITION WITHIN THE MEANING OF ARTICLE 85 .