Opinion of the Advocate General — ECLI:EU:C:2000:372
Date: 2000-07-06
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Finland

summary, I am satisfied, at least in respect of exclusive purchasing agreements in the service station sector, where it is common ground that competition is essentially limited to inter-brand price competition and where it is also clear, unlike, for example, in the beer and ice-cream markets, that there is little or only insignificant brand loyalty among consumers, that an agreement concluded by a supplier which may be terminated by the reseller at any time simply by giving one year's notice is not similar to other fixed-term agreements which tie the reseller to the supplier for significantly longer periods of time. Such agreements, where they constitute a small minority of that supplier's network of agreements and where they genuinely permit the reseller readily to switch suppliers, should be assessed separately by national courts. III - Conclusion 36. Consequently, I would recommend that the Court answer the question referred by the Tampereen Käräjäoikeus as follows: Article 85(1) of the EC Treaty (now Article 81(1) EC) does not apply to an exclusive purchasing agreement concluded by a particular supplier which, because it is terminable on giving a short period of notice, is economically distinguishable, as regards its effects on competition, from the majority of the other exclusive purchasing agreements of the same supplier, provided the agreement in question has insignificant effects on access to the market. This is so even if all the exclusive purchasing agreements concluded by that supplier, considered as a whole or together with the parallel networks of similar agreements concluded by the other suppliers active on the market, have a significant influence on foreclosure of the market. 1: Original language: English. 2: - See Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements, OJ 1983 L 173, p. 5. This regulation was adopted by the Commission on the basis of the authority granted by the Council in Council Regulation 19/65/EEC of 2 March 1965 on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices, as amended; OJ, English Special Edition, Series I (1965-1966), p. 533. 3: - It would appear from the uncontradicted oral observations submitted by Neste that the original 1986 contract was renewed for a further period of five years on 7 October 1996, but that the new contract was subject to termination by either party on giving one year's notice. 4: - See Case 23/67 Brasserie de Haecht v Wilkin [1967] ECR 407 (hereinafter 'Brasserie de Haecht‘) and Case C-234/89 Delimitis [1991] ECR I-935. 5: - See Case T-7/93 Langnese-Iglo v Commission [1995] ECR II-1533 and Case T-9/93 Schöller v Commission [1995] ECR II-1611. 6: - Loc. cit., footnote 3 above. The Commission refers particularly to paragraphs 24 and 25. 7: - Loc. cit., footnote 4 above. Reference is made to paragraphs 129, 206 and 207. 8: - Ibid. Reference is made to paragraphs 95, 160 and 161. 9: - This group exemption, which was initially due to expire on 31 December 1997, was extended until 31 December 1999 by Commission Regulation (EC) No 1582/97 of 30 July 1997 amending Regulations (EEC) No 1983/84 and No 1984/83 on the application of Article 81(3) of the Treaty to categories of exclusive distribution agreements and exclusive purchasing agreements respectively (OJ 1997 L 214, p. 27). It was, thus, in force in July 1998 when the present dispute arose. It has now been replaced by the exemption provided in Article 2 of Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 1). Neste's agreements would not appear to benefit from the new exemption, whose application is limited, under Article 3 of Regulation No 2790/1999, to suppliers whose market share does not exceed 30%. However, under Article 12 of that Regulation, the earlier exemption effectively continues until 31 December 2001 in respect of agreements which benefited from the old exemption but which are no longer exempt under the new one. 10: - It informed the Court that following Finland's accession to the European Union, it succeeded, in 1995, in renegotiating all its exclusive purchasing agreements with the exception of the 27 agreements at issue so that they would comply with the exemption block-requirements of Regulation No 1984/83. After the present dispute arose, it rescinded, in accordance with the one-year notice period, the remaining 26 contracts and replaced them with contracts that also comply with that group exemption. 11: - As regards the new block exemption provided by Article 2 of Regulation No 2790/1999, Article 5(a) provides that '[A] non-compete obligation which is tacitly renewable beyond a period of five years is to be deemed to have been concluded for an indefinite duration‘. It thus falls outside the scope of the maximum period of five years allowed under the new Regulation. 12: - The possibility that the agreement at issue might benefit from the application of the doctrine of provisional validity, confirmed recently by the Court in Case C-39/96 KVBBB v Free Record Shop [1997] ECR I-2303, on the basis that it was exempt from notification under both Article 4(2) of Protocol 21 to the EEA Agreement and Article 4(2) of Regulation No 17 of the Council of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, 1959-62, p. 87) and that it represents effectively a mere, or indeed a less restrictive, re-enactment of the original 1986 agreement has not been raised in the present case. I do not therefore intend to express any view on that complex issue. 13: - Loc. cit., footnote 3 above. 14: - [1967] ECR 407, p. 415. 15: - Ibid. 16: - Ibid. 17: - Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235. 18: - Ibid., at p. 250. 19: - Paragraphs 10 to 13. 20: - Société Technique Minière v Maschinenbau Ulm, loc. cit., footnote 16 above. 21: - Referring to beer-supply agreements, he observed that they '... do not seem, when viewed in isolation, to be prejudicial to the Common Market in any way‘, that 'this assessment is hardly altered if the entire distribution network of one brewery is examined as a whole, since where many such distribution networks exist ... it would be difficult for a single one of them to have an appreciable effect on trade between countries‘, but that such an effect could 'occur as the result of the combined operation of all the internal beer distribution agreements in a Member State‘; see [1967] ECR 407, at pp. 420 and 421 (emphasis in original). 22: - Paragraph 19. 23: - Paragraph 20. 24: - See paragraphs 20 to 22. 25: - Paragraph 24. 26: - Paragraph 24. 27: - Paragraph 26. 28: - See Delimitis, paragraph 32, where the Court considered that a clause allowing a beer reseller to purchase beer from other Member States could not affect the assessment under Article 81(1) EC of an exclusive purchasing agreement unless the clause gave 'a national or foreign supplier of beer from other Member States a real possibility of supplying the sales outlet in question‘ (emphasis added). In my opinion, it follows that there must be a substantive, as opposed to a minimal, opportunity for new competitors to enter the relevant market in order to avoid the conclusion that market access is 'difficult‘; see also in this respect the judgments in Langnese-Iglo, paragraph 106 and in Schöller, paragraph 82 where the Court of First Instance refers to whether there are 'real and specific possibilities for new competitors to penetrate the market despite the existence of a network of exclusive purchasing agreements‘. 29: - Paragraph 53. 30: - Loc. cit., footnote 4 above. 31: - See Cases T-24/92 R and T-28/92 R Langnese-Iglo v Commission [1992] ECR II-1839. 32: - Commission Decision of 25 March 1992 relating to a proceeding under Article 85 of the EEC treaty (IV/34.072 - Mars/Langnese and Schöller - Interim Measures). This was an interim decision in which the Commission had prohibited the applicants from enforcing their contractual rights under their exclusive purchasing agreements. 33: - See paragraphs 30 and 31 of the Order. 34: - Paragraph 32. 35: - Commission Decision 93/405/EEC of 23 December 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty against Schöller Lebensmittel GmbH & Co KG (IV/31.533 and IV/34.072) and Commission Decision 93/406/EEC of 23 December 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty against Langnese-Iglo GmbH (IV/34.072); OJ 1993 L 183, p. 1 and p. 19 respectively. 36: - Langnese-Iglo, paragraph 129, Schöller, paragraph 95, both cases cited in footnote 4 above. 37: - Langnese-Iglo, paragraph 206, Schöller, paragraph 160. The Commission pointed out in its written observations that, in the Finnish version of the judgments, there is no reference to 'of a supplier‘ but merely to exclusive purchasing agreements whose contribution to a cumulative effect is insignificant. However, in the authentic German version, the reference to supplier, '... die Alleinbezugsvertraege eines Lieferanten‘ (emphasis added), is included. 38: - Langnese-Iglo, paragraph 207, Schöller, paragraph 161. 39: - Paragraphs 31 and 32. 40: - Paragraph 26. 41: - See the Commission's new 'Guidelines on Vertical Restraints‘ (paragraph 151), which were issued in December 1999 along with the adoption of the new block exemption regulation (Regulation No 2790/1999, loc. cit., footnote 8 above) and which took effect on 1 June 2000. They have to date only been published on the Internet (see, in this respect, http://europa.eu.int/comm/dg04/antitrust/legislation/vertical.restraints/guidelines.en.pdf). In paragraph 143 of the earlier draft version of the Guidelines, published along with the draft new block exemption regulation (see OJ 1999 C 270, p.12), it cited explicitly the example of 'petrol retailing‘. 42: - The fact that Regulation No 2790/1999 specifically provides (Article 8) that the Commission may withdraw, by regulation, the benefit of the group exemption provided for in Article 2 of that Regulation, in the case of 'parallel networks of similar vertical restraints‘ which 'cover more than 50% of a relevant market‘, does not support the Commission's opposition to the separate treatment in certain circumstances of individual agreements, since the power granted by Article 8 is, like the approach to Article 81(1) required by Delimitis, predicated on the similarity of the agreements at issue. 43: - Neste informed the Court at the hearing that the defendants, along with the other 26 resellers, made a business decision in 1995, when Neste wished to amend all of its agreements so as to bring them into conformity with Regulation No 1984/83, to retain the agreements originally concluded in 1986.