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III. Competition

Published online by Cambridge University Press:  17 January 2008

Karl Newman  and
Robert Lane
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Extract

The period under consideration (mid-1995 to March 1998) was a relatively quiet one for Article 85. Note should be taken of the publication in 1997 of the Commission's Green Paper on vertical restraints in competition policy,1 which is likely to lead to a significant overhaul of a number of block exemption regulations. The existing block exemptions on patent licensing and know-how agreements2 were merged into a new single block exemption on technology transfer.3 Perhaps the most interesting and potentially far-reaching development was the Commission decision in Bayer/Adalat,4 in which the Commission characterised as agreements—and so falling within Article 85—attempts by the German chemicals group Bayer to limit supplies of a range of pharmaceutical products from its wholly owned distributors in other member States to wholesalers there in order to stem parallel exports. This was not an Article 86 case (Bayer was not dominant in the relevant product market), of which refusal to sell is more commonly a feature, and an agreement between manufacturer and distributor/wholesaler which prohibits re-export of the contract goods has long been recognised as falling within Article 85(1). But in Bayer/Adalat the wholesalers never agreed to the (alleged) export ban, and in fact resisted Bayer's attempts to limit supplies both directly and by subterfuge. Nevertheless, the Commission found an agreement between the Bayer distributors and the wholesalers, effectively simply in continuing to deal, the former having committed “an infringement of Article 85(1) by imposing an export ban as part of their continuous commercial relations with [the latter]”,5 the ban having “been agreed [sic] as part of their ongoing business relations”.6

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 47 , Issue 3 , July 1998 , pp. 713 - 719
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. COM(96)721 final.

2. Reg.349/84 (1984) O.J.L.219/15Google Scholar and Reg. 556/89 (1989) O.J.L.61/1 respectively.Google Scholar

3. Reg.240/96(1996)O.J.L.31/2.Google Scholar

4. Decision 96/478 (1996) O.J.L.201/1.Google Scholar

5. Idem, para. 155.

6. Idem, Art.1.

7. Case T–41/96 Bayer v. Commission, pending. See Case T–41/96R Bayer v. Commission [1996]E.C.R. 11–381, in which the president ofthe Court ofFirst Instance suspended the operative part of the decision pending final determination of the case.Google Scholar

8. Case T–24/90 Automec v. Commission (Automec II) [1992] E.C.R. 11–2223.Google Scholar

9. Reg.99/63 (1963) J.O., p.2268, Art.6.Google Scholar

10. Case T–64/89 Automec v. Commission (Automec I) [1990] E.C.R. 11–367.Google Scholar

11. Case C–282/95P Guérin Automobiles v. Commission [1997] E.C.R. 1–1503.Google Scholar

12. Case C–360/92P Publishers Association v. Commission [1995] E.CR. 1–23Google Scholar; Cases T–70–71/92 Florimex v. Commission [1997] E.C.R. 11–693Google Scholar; Case T–504/693 Tiercé Ladbroke v. Commission [1997] E.C.R. 11–923.Google Scholar

13. Guérin Automobiles, supra n.11.

14. Automec II, supra n.8; Case T–114/92 BEMIM v. Commission [1995] E.CR. 11–147Google Scholar; Cases C–359 and 379/95P Commission and France v. Ladbroke Racing, [1997] E.C.R. 1–6265.Google Scholar

15. Decision 92/553 (1992) O.J.L.356/1.Google Scholar

16. Case T–96/92 Comité Central d'Entreprise de la Socété Générale des Grandes Sources v. Commission [1995] E.CR. 11–1213Google Scholar and Case T–12/93 Comité Central d'Entreprise de la Société Anonyme Vittel v. Commission [1995] E.C.R. 11–1247.Google Scholar

17. Case T–227/95 AssiDömän Kraft Products v. Commission [1997] E.C.R. 11–1185;under appeal as Case C–310/97P, pending.Google Scholar

18. Notice on agreements of minor importance which do not fall within the meaning of Art.85(l) (1997) O.J.C.372/13, para. 5.Google Scholar

19. Notice on the non-imposition or the mitigation of fines in cartel cases, (1996) O.J. C207/4.Google Scholar

20. Notice on the method of setting fines pursuant to Art 15(2) of Reg. 17 and Art.65(5) of the ECSC Treaty (1998) O.J. C9/3.Google Scholar

21. Decision 92/163 (1992) O.J. L72/1Google Scholar, upheld in Case T–83/91 Tetra Pak v. Commission [1994] E.C.R. 11–755Google Scholar and on appeal in Case C–333/94P Tetra Pak v. Commission [1996] E.C.R. 1–5951.Google Scholar

22. Decision 98/273 (1998) O J. L124/60. Volkswagen has indicated that it will seek review of the decision.Google Scholar

23. Notice on co-operation between national courts and the Commission in applying Arts.85 and 86 of the EEC Treaty (1993) O.J. C39/6, paras.14–16. The Commission intends to reissue an amended version of this NoticeGoogle Scholar; see (1996) OJ. C262/5.Google Scholar

24. Automec II, supra n.8. Nor is the Commission under a duty to intervene where there is divergent national case law on Arts.85 and 86, for “it falls first to the national courts” to ensure the uniform application of Community law, Case T–5/93 Tremblay v. Commission [1995] E.C.R. 11–185, 215.Google Scholar

25. Notice on agreements of minor importance, supra, n. 18. at paras.5, 11,19,20.

26. Supra n.23.

27. Notice on co-operation between national competition authorities and the Commission in handling cases falling within the scope of Arts.85 or 86 (1997) O.J. C313/3.Google Scholar

28. Supra n.18.

29. Notice on definition of the relevant market for the purposes of Community competition law (1997) O.J. C372/5.Google Scholar

30. The leniency Notice, supra n. 19; the setting of fines Notice, supra n.20; Notice on internal rules of procedure for processing requests for access to the file (1997) O.J. C23/3Google Scholar; Notice on restrictions ancillary to concentrations (1990) O.J. C203/5Google Scholar; Notice on the concept of a full function joint venture (1998) O.J. C66/1Google Scholar; Notice on the notion of a concentration (1998) O.J. C66/5Google Scholar; Notice on the notion of concerned undertakings (1998) O.J. C66/14Google Scholar; Notice on the calculation of turnover (1998) O.J. C66/25.Google Scholar

31. Reg.1310/97 (1997) O.J. L180/1.Google Scholar

32. Reg.4064/89 (1990)O.J. L257/14, Art.1(3).Google Scholar

33. Art. 1(4), (5).

34. Art.3(2); see also Reg.1310/97, recital 5.

35. Art.2(4).

36. Reg. 1310/97, recital 5.

37. Reg.4064/89, Art.2(4).

38. Ibid.

39. Art.8(3).

40. Art.22(3).

41. Art.22(6), now repealed.

42. Except that under the new Art.22(3), a referral may be made by two or more member States acting jointly (the “Scandinavian clause”), so allowing the Commission to consider the effects of a referred concentration in more than one member State.

43. Art.9.

44. Art.9(10), now replaced with a commitment for review by July 2000.

45. Cf. the old version of Art.9(3)(b) (“the Commission may refer the case to the competent [national] authorities”) with its replacement (“the Commission may refer the whole or part of the case to the competent [national] authorities”).

46. Cases C–68/94 and 30/95; judgment of 31 Mar. 1998, not yet rep.

47. Para.221.

48. Reg. 4064/89, Art.6(1)(c).