Keywords
Summary

Keywords

1 . APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID - NATURAL OR LEGAL PERSONS - MEASURES WHICH CONCERN THEM DIRECTLY AND INDIVIDUALLY - DECISION GRANTING AN EXEMPTION PURSUANT TO ARTICLE 85 ( 3 ) OF THE TREATY - UNDERTAKING TO WHICH THE DECISION WAS NOT ADDRESSED , RECOGNIZED AS HAVING A LEGITIMATE INTEREST IN SUBMITTING OBSERVATIONS IN THE FRAMEWORK OF THE ADMINISTRATIVE PROCEDURE - RIGHT TO BRING AN ACTION

( EEC TREATY , ART . 85 ( 3 ) AND SECOND PARAGRAPH OF ART . 173 , REGULATION NO 17 OF THE COUNCIL , ART . 19 ( 3 ))

2 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - NOTIFICATION - DECISION GRANTING AN EXEMPTION - APPLICATION FOR RENEWAL - NEED FOR FRESH FORMAL NOTIFICATION - NONE

( EEC TREATY , ART . 85 ( 3 ); REGULATION NO 17 OF THE COUNCIL , ART . 8 ( 2 ))

3 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - SELECTIVE DISTRIBUTION SYSTEMS - ' SIMPLE ' SYSTEMS - INCREASE IN THE NUMBER OF SUCH SYSTEMS FOR THE MARKETING OF THE SAME PRODUCT - PERMISSIBILITY - CONDITIONS - NEED TO EXAMINE , IN THE FRAMEWORK OF AN APPLICATION FOR EXEMPTION , THE EFFECT WHICH SUCH SYSTEMS ACTUALLY HAVE ON THE COMPETITION SITUATION ON THE MARKET .

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

4 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - SELECTIVE DISTRIBUTION SYSTEMS - LIMITATION OF PRICE COMPETITION - COMPENSATED FOR BY COMPETITION AS REGARDS THE QUALITY OF THE SERVICES SUPPLIED TO CUSTOMERS

5 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - SELECTIVE DISTRIBUTION SYSTEMS - EXEMPTION - CONDITIONS - MAINTENANCE OF WORKABLE COMPETITION - FACTORS TO BE TAKEN INTO CONSIDERATION

( EEC TREATY , ART . 85 ( 3 ))

6 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - SELECTIVE DISTRIBUTION SYSTEMS - SYSTEMATIC REFUSAL TO APPROVE DISTRIBUTORS WHO SATISFY THE QUALITATIVE CRITERIA OF THE SYSTEM - NOT PERMISSIBLE - EFFECTS

7 . COMPETITION - DOMINANT POSITION - CRITERIA FOR APPRAISAL - SIZE OF MARKET SHARE

8 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - SELECTIVE DISTRIBUTION SYSTEMS - EXEMPTION - RENEWAL - FACTORS TO BE TAKEN INTO CONSIDERATION - INCREASE IN THE DEGREE OF CONCENTRATION AFFECTING THE STRUCTURE OF COMPETITION ON THE RELEVANT MARKET .

( EEC TREATY , ART . 85 ( 3 ))

Summary

1 . PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY CLAIM TO BE CONCERNED WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 ONLY IF THAT DECISION AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM , OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS , AND BY VIRTUE OF THESE FACTORS DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED .

IN THE CONTEXT OF A DECISION GRANTING EXEMPTION PURSUANT TO ARTICLE 85 ( 3 ) OF THE TREATY IN RESPECT OF A SELECTIVE DISTRIBUTION SYSTEM , AN UNDERTAKING WHICH HAS BEEN REFUSED ACCESS TO THE DISTRIBUTION SYSTEM IN QUESTION AND WHO HAS BEEN RECOGNIZED BY THE COMMISSION AS HAVING A LEGITIMATE INTEREST IN SUBMITTING OBSERVATIONS IN THE FRAMEWORK OF THE EXEMPTIVE PROCEDURE IN ACCORDANCE WITH ARTICLE 19 ( 3 ) OF REGULATION NO 17 , MUST BE REGARDED AS BEING DIRECTLY AND INDIVIDUALLY CONCERNED BY THE DECISION GRANTING AN EXEMPTION .

2 . THE RENEWAL OF A DECISION GRANTING EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY IN RESPECT OF A SELECTIVE DISTRIBUTION SYSTEM WHICH HAS BEEN MODIFIED IN ORDER TO RENDER THE SYSTEM LESS RESTRICTIVE THAN BEFORE DOES NOT PRE-SUPPOSE FRESH FORMAL NOTIFICATION OF THE MODIFIED SYSTEM BUT ONLY AN APPLICATION FOR RENEWAL AND COMMUNICATION OF THE MODIFICATIONS MADE TO THE SYSTEM , SO AS TO ENABLE THE COMMISSION TO ADOPT A DECISION PURSUANT TO ARTICLE 8 ( 2 ) OF REGULATION NO 17 .

3 . ALTHOUGH ' SIMPLE ' SELECTIVE DISTRIBUTION SYSTEMS ARE CAPABLE OF CONSTITUTING AN ASPECT OF COMPETITION COMPATIBLE WITH ARTICLE 85 ( 1 ) OF THE TREATY , THERE MAY NEVERTHELESS BE A RESTRICTION OR ELIMINATION OF COMPETITION WHERE THE EXISTENCE OF A CERTAIN NUMBER OF SUCH SYSTEMS DOES NOT LEAVE ANY ROOM FOR OTHER FORMS OF DISTRIBUTION BASED ON A DIFFERENT TYPE OF COMPETITION POLICY OR RESULTS IN A RIGIDITY IN PRICE STRUCTURE WHICH IS NOT COUNTERBALANCED BY OTHER ASPECTS OF COMPETITION BETWEEN PRODUCTS OF THE SAME BRAND AND BY THE EXISTENCE OF EFFECTIVE COMPETITION BETWEEN DIFFERENT BRANDS . CONSEQUENTLY , THE EXISTENCE OF A LARGE NUMBER OF SELECTIVE DISTRIBUTION SYSTEMS FOR A PARTICULAR PRODUCT DOES NOT IN ITSELF PERMIT THE CONCLUSION THAT COMPETITION IS RESTRICTED OR DISTORTED . NOR IS THE EXISTENCE OF SUCH SYSTEMS DECISIVE AS REGARDS THE GRANTING OR REFUSAL OF AN EXEMPTION UNDER ARTICLE 85 ( 3 ), SINCE THE ONLY FACTOR TO BE TAKEN INTO CONSIDERATION IN THAT REGARD IS THE EFFECT WHICH SUCH SYSTEMS ACTUALLY HAVE ON THE COMPETITIVE SITUATION .

4 . SOME LIMITATION OF PRICE COMPETITION MUST BE REGARDED AS INHERENT IN ANY SELECTIVE DISTRIBUTION SYSTEM , BECAUSE THE PRICES APPLIED BY SPECIALIST DEALERS NECESSARILY REMAIN WITHIN A MUCH NARROWER MARGIN THAN WOULD BE EXPECTED IF THERE WERE COMPETITION BETWEEN SPECIALIST DEALERS AND NON-SPECIALIST DEALERS . THAT LIMITATION IS COUNTERBALANCED BY COMPETITION AS REGARDS THE QUALITY OF THE SERVICES SUPPLIED TO CUSTOMERS , WHICH IS NOT NORMALLY POSSIBLE IN THE ABSENCE OF AN ADEQUATE PROFIT MARGIN COVERING THE HIGHER COSTS ENTAILED BY SUCH SERVICES .

5 . THE POWERS CONFERRED UPON THE COMMISSION UNDER ARTICLE 85 ( 3 ) SHOW THAT THE REQUIREMENTS FOR THE MAINTENANCE OF WORKABLE COMPETITION MAY BE RECONCILED WITH THE SAFEGUARDING OF OBJECTIVES OF A DIFFERENT NATURE AND TO THIS END CERTAIN RESTRICTIONS ON COMPETITION ARE PERMISSIBLE , PROVIDED THAT THEY ARE ESSENTIAL TO THE ATTAINMENT OF THOSE OBJECTIVES AND THAT THEY DO NOT RESULT IN THE ELIMINATION OF COMPETITION FOR A SUBSTANTIAL PART OF THE COMMON MARKET . COMPETITION COULD NOT BE ELIMINATED IF THE CHANNEL OF DISTRIBUTION IN QUESTION CONTINUES TO EXIST IN CONJUNCTION WITH METHODS OF DISTRIBUTION BASED ON A DIFFERENT TYPE OF COMPETITION POLICY .

6 . IN THE CONTEXT OF A SELECTIVE DISTRIBUTION SYSTEM , A MANUFACTURER ' S REFUSAL TO APPROVE DISTRIBUTORS WHO SATISFY THE QUALITATIVE CRITERIA OF THE SYSTEM MUST BE CONSIDERED UNLAWFUL . THE EXISTENCE OF ISOLATED CASES OF REFUSAL , NOT FORMING PART OF A SYSTEMATIC UNLAWFUL APPLICATION OF THE SYSTEM , IS NOT SUFFICIENT TO COMPEL THE COMMISSION TO WITHDRAW AN EXEMPTION WHICH HAS ALREADY BEEN GRANTED OR TO REFUSE TO RENEW SUCH AN EXEMPTION .

7 . ALTHOUGH THE SHARE OF THE MARKET HELD BY AN UNDERTAKING DOES NOT NECESSARILY CONSTITUTE THE SOLE CRITERION FOR THE EXISTENCE OF A DOMINANT POSITION , IT MAY , HOWEVER , BE CONSIDERED THAT IN A MARKET IN HIGHLY TECHNICAL PRODUCTS WHICH NEVERTHELESS APPEAR TO THE MAJORITY OF CONSUMERS TO BE READILY INTERCHANGEABLE , MARKET SHARES OF LESS THAN 10% PRECLUDE THE EXISTENCE OF A DOMINANT POSITION SAVE IN EXCEPTIONAL CIRCUMSTANCES .

8 . IN EXAMINING AN APPLICATION FOR THE RENEWAL OF AN EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY IN RESPECT OF A SELECTIVE DISTRIBUTION SYSTEM , THE INCREASE IN THE DEGREE OF CONCENTRATION ON THE MARKET IS A FACTOR TO BE TAKEN INTO CONSIDERATION IF SUCH AN INCREASE AFFECTS THE STRUCTURE OF COMPETITION ON THE RELEVANT MARKET . SUCH AN EFFECT DOES NOT ALWAYS OCCUR WHERE , AS IN THE PRESENT CASE , THE TREND TOWARDS CONCENTRATION IS AT THE LEVEL OF PRODUCTION AND THE AGREEMENTS TO BE EXAMINED BY THE COMMISSION CONCERN THE DISTRIBUTION OF PRODUCTS . HOWEVER , SUCH AN EFFECT MAY ARISE , IN PARTICULAR IF THE TREND TOWARDS CONCENTRATION HELPS TO ELIMINATE PRICE COMPETITION OR TO OUST OTHER CHANNELS OF DISTRIBUTION .