Order — ECLI:EU:C:2006:607
Date: 2006-09-28
Language of the case: English
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: Definition of abuse;Division of powers between the Commission and the authorities of the Member States;Restriction of competition;General
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Ireland

Summary of the Order 1. Competition – Agreements, decisions and concerted practices – Adverse effect on competition (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 2. Competition – Agreements, decisions and concerted practices – Adverse effect on competition (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 3. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption (EC Treaty, Art. 85(3) (now Art. 81(3) EC)) 4. Competition – Community rules – Assessment of the compatibility with Community law of an exclusivity clause given effect to by the national courts 5. Competition – Dominant position – Abuse – Meaning (EC Treaty, Art. 86 (now Art. 82 EC)) 1. Contractual restrictions imposed on retailers by a series of distribution agreements incorporating an exclusivity clause and allowing the retailers to terminate the agreements at any time with a very short notice period must be examined not just in a purely formal manner from the legal point of view but also by taking into account the specific economic context in which those agreements operate. It follows that, since the possibility of terminating the distribution agreements does not in any way preclude the effective enforcement of those agreements during the period in which that option is not used, it is necessary to take into account the actual duration of those agreements in assessing their effects on the relevant market. (see paras 2, 54-55) 2. 3. The effects of an agreement on competition must be assessed in the context in which it occurs and where it might combine with others to have a cumulative effect on competition. Thus, in order to assess whether a number of distribution agreements incorporating an exclusivity clause impede access to the market in question, it is necessary to define the nature and extent of all similar agreements tying a large number of outlets to a number of national producers. The effect of those networks of contracts on access to the market depends specifically on the number of outlets thus tied to producers in relation to those which are not so tied, the duration of the commitments entered into and the quantities of goods to which those commitments relate. (see paras 84-85) 4. Where an exemption is being applied for under Article 85(3) of the Treaty (now Article 81(3) EC), it is for the undertakings concerned in the first place to present to the Commission the evidence intended to establish that the agreement in question fulfils the conditions laid down by that provision (see para. 102) 5. The Community Courts cannot be bound by a finding of a national court that an exclusivity clause in a distribution agreement is compatible with Community law. (see para. 128) 6. The concept of abuse of a dominant position is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is already weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of economic operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition. In that regard, the fact that agreements were entered into at the request of the contracting partners of the undertaking in a dominant position does not mean that there is not an abuse. (see para. 129)