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►B REGULATION (EEC)No 2821/71 OF THE COUNCIL
of 20 December 1971
on application of Article 85 (3)of the Treaty to categories of agreements, decisions and concerted
practices
(OJ L 285, 29.12.1971, p. 46)
Amended by:
Official Journal
No page date
►M1Regulation (EEC) No 2743/72 of the Council of 19 December1972 L 291 144 28.12.1972
Amended by:
►A1Act of Accession of Greece L 291 17 19.11.1979
►A2Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A3Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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REGULATION (EEC)No 2821/71 OF THE COUNCIL
of 20 December 1971
on application of Article 85 (3)of the Treaty to categories of
agreements, decisions and concerted practices
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular Article 87 thereof;
Having regard to the proposal from the Commission;Having regard to the Opinion of the European Parliament;Having regard to the Opinion of the Economic and Social Committee;Whereas Article 85 (1) of the Treaty may in accordance with Article 85
(3) be declared inapplicable to categories of agreements, decisions andconcerted practices which fulfil the conditions contained in Article 85(3);
Whereas the provisions for implementation of Article 85 (3) must be
adopted by way of regulation pursuant to Article 87;
Whereas the creation of a common market requires that undertakings be
adapted to the conditions of the enlarged market and whereas co-opera-tion between undertakings can be a suitable means of achieving this;
Whereas agreements, decisions and concerted practices for co-operation
between undertakings which enable the undertakings to work morerationally and adapt their productivity and competitiveness to theenlarged market may, in so far as they fall within the prohibitioncontained in Article 85 (1), be exempted therefrom under certain condi-tions; whereas this measure is necessary in particular as regards agree-ments, decisions and concerted practices relating to the application ofstandards and types, research and development of products or processesup to the stage of industrial application, exploitation of the resultsthereof and specialisation;
Whereas it is desirable that the Commission be enabled to declare by
way of regulation that the provisions of Article 85 (1) do not apply tothose categories of agreements, decisions and concerted practices, inorder to make it easier for undertakings to co-operate in ways which areeconomically desirable and without adverse effect from the point ofview of competition policy;
Whereas it should be laid down under what conditions the Commission,
in close and constant liaison with the competent authorities of theMember States, may exercise such powers;
Whereas under Article 6 of Regulation No 17 (
1) the Commission may
provide that a decision taken in accordance with Article 85 (3) of theTreaty shall apply with retroactive effect; whereas it is desirable that theCommission be empowered to issue regulations whose provisions are tothe like effect;
Whereas under Article 7 of Regulation No 17 agreements, decisions and
concerted practices may by decision of the Commission be exemptedfrom prohibition, in particular if they are modified in such manner thatArticle 85 (3) applies to them; whereas it is desirable that the Commis-sion be enabled to grant by regulation like exemption to such agree-ments, decisions and concerted practices if they are modified in suchmanner as to fall within a category defined in an exempting regulation;
Whereas the possibility cannot be excluded that, in a specific case, the
conditions set out in Article 85 (3) may not be fulfilled; whereas the
(1) OJ No 13, 21.2.1962, p. 204/62.
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Commission must have power to regulate such a case in pursuance of
Regulation No 17 by way of decision having effect forthe futur e;
HAS ADOPTED THIS REGULATION:
Article 1
1. Without prejudice to the application of Regulation No 17 the
Commission may, by regulation and in accordance with Article 85 (3)of the Treaty, declare that Article 85 (1) shall not apply to categories ofagreements between undertakings, decisions of associations of undertak-ings and concerted practices which have as their object:
(a) the application of standards or types;
(b) the research and development of products or processes up to the
stage of industrial application, and exploitation of the results,including provisions regarding industrial property rights and confi-dential technical knowledge;
(c) specialisation, including agreements necessary for achieving it.
2. Such regulation shall define the categories of agreements, deci-
sions and concerted practices to which it applies and shall specify inparticular:
(a) the r estr ictions orclauses which may, ormay not, appearin the
agreements, decisions and concerted practices;
(b) the clauses which must be contained in the agreements, decisions
and concerted practices or the other conditions which must besatisfied.
Article 2
1. Any regulation pursuant to Article 1 shall be made for a specified
period.
2. It may be repealed or amended where circumstances have changed
with respect to any of the facts which were basic to it being made; insuch case, a period shall be fixed for modification of the agreements,decisions and concerted practices to which the earlier regulation applies.
Article 3
A regulation pursuant to Article 1 may provide that it shall apply with
retroactive effect to agreements, decisions and concerted practices towhich, at the date of entry into force of that regulation, a decisionissued with retroactive effect in pursuance of Article 6 of Regulation No17 would have applied.
Article 4
1. A regulation pursuant to Article 1 may provide that the prohibition
contained in Article 85 (1) of the Treaty shall not apply, for such periodas shall be fixed by that regulation, to agreements, decisions andconcerted practices already in existence on 13 March 1962 which do notsatisfy the conditions of Article 85 (3), where:
— within six months from the entry into force of the regulation, they
are so modified as to satisfy the said conditions in accordance withthe provisions of the regulation; and
— the modifications are brought to the notice of the Commission
within the time limit fixed by the regulation.
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M1
A Regulation adopted pursuant to Article 1 may lay down that theprohibition referred to in Article 85 (1) of the Treaty shall not apply, forthe period fixed in the same Regulation, to agreements and concertedpractices which existed at the date of accession and which, by virtue ofaccession, come within the scope of Article 85 and do not fulfil theconditions set out in Article 85 (3).
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The provisions of the preceding subparagraph shall apply in the sameway in the case of the accession of the Hellenic Republic, the Kingdomof Spain and of the Portuguese Republic.
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A3
The provisions of the preceding subparagraphs shall apply in the sameway in the case of the accession of Austria, Finland and Sweden.
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B
2. Paragraph 1 shall apply to agreements, decisions and concertedpractices which had to be notified before 1 February 1963, in accord-ance with Article 5 of Regulation No 17, only where they have been sonotified before that date.
▼
M1
Paragraph 1 shall be applicable to those agreements and concertedpractices which, by virtue of the accession, come within the scope ofArticle 85 (1) of the Treaty and for which notification before 1 July1973 is mandatory, in accordance with Articles 5 and 25 of RegulationNo 17, only if notification was given before that date.
▼
A1
Paragraph 1 shall not apply to agreements and concerted practices towhich Article 85 (1) of the Treaty applies by virtue of the accession ofthe Hellenic Republic and which must be notified before 1 July 1981, inaccordance with Articles 5 and 25 of Regulation No 17, unless theyhave been so notified before that date.
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A2
Paragraph 1 shall not apply to agreements and concerted practices towhich Article 85 (1) of the Treaty applies by virtue of the accession ofthe Kingdom of Spain and of the Portuguese Republic and which mustbe notified before 1 July 1986, in accordance with Articles 5 and 25 ofRegulation No 17, unless they have been so notified before that date.
▼
A3
Paragraph 1 shall not apply to agreements and concerted practices towhich Article 85 (1) of the Treaty applies by virtue of the accession ofAustria, Finland and Sweden and which must be notified within sixmonths of accession, in accordance with Articles 5 and 25 of RegulationNo 17, unless they have been so notified within that period. The presentparagraph shall not apply to agreements and concerted practices whichat the date of accession already fall under Article 53 (1) of the EEAAgreement.
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B
3. The benefit of the provisions laid down pursuant to paragraph 1may not be claimed in actions pending at the date of entry into force ofa regulation adopted pursuant to Article 1; neither may it be relied on asgrounds for claims for damages against third parties.
Article 5
Before making a regulation, the Commission shall publish a draft
thereof to enable all persons and organisations concerned to submit theircomments within such time limit, being not less than one month, as theCommission shall fix.
Article 6
1. The Commission shall consult the Advisory Committee on
Restrictive Practices and Monopolies:
(a) before publishing a draft regulation;
(b) before making a regulation.
2. Paragraphs 5 and 6 of Article 10 of Regulation No 17, relating to
consultation with the Advisory Committee, shall apply by analogy, itbeing understood that joint meetings with the Commission shall takeplace not earlier than one month after dispatch of the notice conveningthem.
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Article 7
Wher e the Commission, eitheron its own initiative orat the r equest of a
MemberState orof natur al orlegal per sons claiming a legitimateinterest, finds that in any particular case agreements, decisions orconcerted practices to which a regulation made pursuant to Article 1 ofthis Regulation applies have nevertheless certain effects which areincompatible with the conditions laid down in Article 85 (3) of theTreaty, it may withdraw the benefit of application of that regulation andtake a decision in accordance with Articles 6 and 8 of Regulation No17, without any notification underAr ticle 4 (1) of Regulation No 17being required.
This Regulation shall be binding in its entirety and directly applicable in
all MemberStates.