Judgment — ECLI:EU:T:2001:215
Date: 2001-09-18
Language of the case: French
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: General
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment 
1. Actions for annulment — Actionable measures — Definition — Measures producing 
binding legal effects — Action against a Commission decision granting negative 
clearance or an individual exemption under the competition rules for a lesser period 
than that first requested — Whether admissible 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 
II - 2459 
SUMMARY — CASE T-112/99 
2. Competition — Agreements, decisions and concerted practices — Existence of a rule 
of reason in Community competition law — No such rule 
(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC)) 
3. Competition — Agreements, decisions and concerted practices — Prohibition — 
Exemption — Clause classified as an ancillary restriction — Concept of an ancillary 
restriction — Scope — Restriction directly related and necessary to the implementa­
tion of a main operation — Objective and proportionate restriction — Complex 
economic appraisal — judicial review — Limits — Consequences of classification 
(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC)) 
4. Competition — Agreements, decisions and concerted practices — Prohibition — 
Exemption — Judicial review — Limits 
(EC Treaty, Art. 85(3) (now Art. 81(3) EC)) 
1. It is settled law that any measure which 
produces binding legal effects such as 
to affect the interests of an applicant by 
bringing about a distinct change in his 
legal position is an act or decision 
which may be the subject of an action 
under Article 173 of the EC Treaty 
(now, after amendment, Article 230 
EC) for a declaration that it is void. 
Thus, any natural or legal person may 
bring an action for annulment of a 
decision of a Community institution 
which does not allow, in whole or in 
part, a clear and precise request from 
that person which falls within the 
competence of that institution. In such 
a situation the total or partial rejection 
of the request produces binding legal 
effects capable of affecting the interests 
of its maker. 
A Commission decision which grants 
negative clearance or an exemption 
under the competition rules only for 
part of the term of a notified agreement 
produces, in regard to the parties to the 
agreement — who had requested 
negative clearance or, failing that, an 
exemption for the full term of the 
agreement — binding legal effects 
capable of affecting their interests. 
(see paras 35-41) 
2. The existence of a rule of reason in 
Community competition law cannot be 
upheld. 
To interpret Article 85(1) of the Treaty 
(now Article 81(1) EC) to the effect 
II - 2460 
M6 AND OTHERS v COMMISSION 
that it is necessary — applying a rule 
of reason — to weigh the pro and anti­
competitive effects of an agreement in 
order to determine whether it is caught 
by the prohibition laid down in that 
article, is difficult to reconcile with the 
rules prescribed by Article 85. Arti­
cle 85 of the Treaty expressly provides, 
in its third paragraph, for the possibi­
lity of exempting agreements that 
restrict competition where they satisfy 
a number of conditions, in particular 
where they are indispensable to the 
attainment of certain objectives and do 
not afford undertakings the possibility 
of eliminating competition in respect of 
a substantial part of the products in 
question. It is only in the precise 
framework of that provision that the 
pro and anti-competitive aspects of a 
restriction may be weighed. Arti­
cle 85(3) of the Treaty would lose 
much of its effectiveness if such an 
examination had to be carried out 
already under Article 85(1) of the 
Treaty. 
It is true that in a number of judgments 
(see, in particular, Case 56/65 Société 
technique minière; Case 258/78 Nun-
gesser and Risele v Commission; Case 
262/81 Coditei and Others; Case 
161/84 Pronuptia; Case C-250/92 
DLG; Case C-399/93 Oude Luttikhuis 
and Others, and Joined Cases 
T-374/94, T-375/94, T-384/94 and 
T-388/94 European Night Services 
and Others v Commission) the Court 
of Justice and the Court of First 
Instance have favoured a more flexible 
interpretation of the prohibition laid 
down in Article 85(1) of the Treaty. 
Those judgments cannot, however, be 
interpreted as establishing the existence 
of a rule of reason in Community 
competition law. They are, rather, part 
of a broader trend in the case-law 
according to which it is not necessary 
to hold, wholly abstractly and without 
drawing any distinction, that any 
agreement restricting the freedom of 
action of one or more of the parties is 
necessarily caught by the prohibition 
laid down in Article 85(1) of the 
Treaty. In assessing the applicability 
of Article 85(1) to an agreement, 
account should be taken of the actual 
conditions in which it functions, in 
particular the economic context in 
which the undertakings operate, the 
products or services covered by the 
agreement and the actual structure of 
the market concerned. 
(see paras 72-76, 107) 
3. In Community competition law the 
concept of an 'ancillary restriction' 
covers any restriction which is directly 
related and necessary to the implemen­
tation of a main operation. 
II - 2461 
SUMMARY — CASE T-112/99 
A restriction 'directly related' to imple­
mentation of a main operation must be 
understood to be any restriction which 
is subordinate to the implementation of 
that operation and which has an evi­
dent link with it. 
The condition that a restriction be 
necessary implies a two-fold examina­
tion. It is necessary to establish, first, 
whether the restriction is objectively 
necessary for the implementation of the 
main operation and, second, whether it 
is proportionate to it. The examination 
of the objective necessity of a restric­
tion in relation to the main operation 
cannot but be relatively abstract. It is 
not a question of analysing whether, in 
the light of the competitive situation on 
the relevant market, the restriction is 
indispensable to the commercial suc­
cess of the main operation but of 
determining whether, in the specific 
context of the main operation, the 
restriction is necessary to implement 
that operation. If, without the restric­
tion, the main operation is difficult or 
even impossible to implement, the 
restriction may be regarded as objec­
tively necessary for its implementation. 
Where a restriction is objectively neces­
sary to implement a main operation, it 
is still necessary to verify whether its 
duration and its material and geo­
graphic scope do not exceed what is 
necessary to implement that operation. 
If the duration or the scope of the 
restriction exceed what is necessary in 
order to implement the operation, it 
must be assessed separately under Arti­
cle 85(3) of the Treaty (now Arti­
cle 81(3) EC). 
Lastly, it must be observed that, inas­
much as the assessment of the ancillary 
nature of a particular agreement in 
relation to a main operation entails 
complex economic assessments by the 
Commission, judicial review of that 
assessment is limited to verifying whe­
ther the relevant procedural rules have 
been complied with, whether the state­
ment of the reasons for the decision is 
adequate, whether the facts have been 
accurately stated and whether there has 
been a manifest error of appraisal or 
misuse of powers. 
If it is established that a restriction is 
directly related and necessary to 
achieving a main operation, the com­
patibility of that restriction with the 
competition rules must be examined 
with that of the main operation. Thus, 
if the main operation does not fall 
within the scope of the prohibition laid 
down in Article 85(1) of the Treaty, the 
II - 2462 
M6 AND OTHERS v COMMISSION 
same holds for the restrictions directly 
related and necessary for that opera­
tion. If, on the other hand, the main 
operation is a restriction within the 
meaning of Article 85(1) but benefits 
from an exemption under Article 85(3) 
of the Treaty, that exemption also 
covers those ancillary restrictions. 
(see paras 104-116) 
4. The exercise of the Commission's 
powers under Article 85(3) of the 
Treaty (now Article 81(3) EC) necessa­
rily involves complex evaluations on 
economic matters, which means that 
judicial review of those evaluations 
must confine itself to an examination 
of the relevance of the facts and of the 
legal consequences which the Commis­
sion deduces from them. That principle 
applies especially with regard to the 
Commission's determination of the 
period during which a restriction is 
considered indispensable. 
(see paras 156-157) 
II - 2463