1985R0417 — EN — 01.01.1995 — 001.001 — 1
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►B COMMISSION REGULATION (EEC) No 417/85
of 19 December 1984
on the application of Article 85 (3) of the Treaty to categories of specialization agreements
(OJ L 53, 22.2.1985, p. 1)
Amended by:
Official Journal
No page date
►M1Commission Regulation (EEC) No 151/93 of 23 December 1992 L 21 8 29.1.1993
Amended by:
►A1Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A2Act 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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COMMISSION REGULATION (EEC) No 417/85
of 19 December 1984
on the application of Article 85 (3) of the Treaty to categories of
specialization agreements
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Havingreg ard to the Treaty establishingthe European EconomicCommunity,
Having regard to Council Regulation (EEC) No 2821/71 of 20
December 1971 on the application of Article 85 (3) of the Treaty tocategories of agreements, decisions and concerted practices(
1), as last
amended by the Act of Accession of Greece, and in particular Article 1thereof,
Havingpublished a draft of this Reg ulation(
2),
Havingconsulted the Advisory Committee on Restrictive Practices and
Dominant Positions,
Whereas:
(1)Regulation (EEC) No 2821/71 empowers the Commission to
apply Article 85 (3) of the Treaty by Regulation to certaincategories of agreements, decisions and concerted practicesfallingwithin the scope of Article 85 (1) which relate to speciali-zation, includingag reements necessary for achievingit.
(2)Agreements on specialization in present or future production mayfall within the scope of Article 85 (1).
(3)Agreements on specialization in production generally contributeto improvingthe production or distribution of g oods, becauseundertakings concerned can concentrate on the manufacture ofcertain products and thus operate more efficiently and supply theproducts more cheaply. It is likely that, given effectivecompetition, consumers will receive a fair share of the resultingbenefit.
(4)Such advantages can arise equally from agreements wherebyeach participant gives up the manufacture of certain products infavour of another participant and from agreements whereby theparticipants undertake to manufacture certain products or havethem manufactured only jointly.
(5)The Regulation must specify what restrictions of competitionmay be included in specialization agreements. The restrictions ofcompetition that are permitted in the Regulation in addition toreciprocal obligations to give up manufacture are normally essen-tial for the makingand implementation of such ag reements.These restrictions are therefore, in general, indispensable for theattainment of the desired advantages for the participating under-takings and consumers. It may be left to the parties to decidewhich of these provisions they include in their agreements.
(6)The exemption must be limited to agreements which do not giverise to the possibility of eliminatingcompetition in respect of asubstantial part of the products in question. The Regulation musttherefore apply only as longas the market share and turnover ofthe participatingundertaking s do not exceed a certain limit.
(7)It is, however, appropriate to offer undertakings which exceed theturnover limit set in the Regulation a simplified means ofobtainingthe leg al certainty provided by the block exemption.
(1) OJ No L 285, 29. 12. 1971, p. 46.
(2) OJ No C 211, 11. 8. 1984, p. 2.
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This must allow the Commission to exercise effective supervision
as well as simplifyingits administration of such ag reements.
(8)In order to facilitate the conclusion of long-term specializationagreements, which can have a bearing on the structure of theparticipatingundertaking s, it is appropriate to fix the period ofvalidity of the Regulation at 13 years. If the circumstances on thebasis of which the Regulation was adopted should change signifi-cantly within this period, the Commission will make the neces-sary amendments.
(9)Agreements, decisions and concerted practices which are auto-matically exempted pursuant to this Regulation need not be noti-fied. Undertakings may none the less in an individual caserequest a decision pursuant to Council Regulation No 17 (
1), as
last amended by the Act of Accession of Greece,
HAS ADOPTED THIS REGULATION:
Article 1
Pursuant to Article 85 (3) of the Treaty and subject to the provisions of
this Regulation, it is hereby declared that Article 85 (1) of the Treatyshall not apply to agreements on specialization whereby, for the dura-tion of the agreement, undertakings accept reciprocal obligations:
(a) not to manufacture certain products or to have them manufactured,
but to leave it to other parties to manufacture the products or havethem manufactured; or
(b) to manufacture certain products or have them manufactured only
jointly.
Article 2
1.►
M1Article 1 shall also apply to the followingrestrictions of
competition: ◄
(a) an obligation not to conclude with third parties specialization agree-
ments relatingto identical products or to products considered byusers to be equivalent in view of their characteristics, price andintended use;
(b) an obligation to procure products which are the subject of the
specialization exclusively from another party, a joint undertakingoran undertakingjointly charg ed with their manufacture, except wherethey are obtainable on more favourable terms elsewhere and theother party, the joint undertakingor the undertakingcharg ed withmanufacture is not prepared to offer the same terms;
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M1
(c) an obligation to grant other parties the exclusive right, within the
whole or a defined area of the common market, to distribute prod-ucts which are the subject of the specialization, provided that inter-mediaries and users can also obtain the products from othersuppliers and the parties do not render it difficult for intermediariesand users to thus obtain the products;
(d) an obligation to grant one of the parties the exclusive right to
distribute products which are the subject of the specializationprovided that that party does not distribute products of a thirdundertakingwhich compete with the contract products;
(e) an obligation to grant the exclusive right to distribute products
which are the subject of the specialization to a joint undertakingorto a third undertaking, provided that the joint undertaking or thirdundertakingdoes not manufacture or distribute products whichcompete with the contract products;
(1) OJ No 13, 21. 2. 1962, p. 204/62.
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(f) an obligation to grant the exclusive right to distribute within the
whole or a defined area of the common market the products whichare the subject of the specialization to joint undertakings or thirdundertakings which do not manufacture or distribute products whichcompete with the contract products, provided that users and inter-mediaries can also obtain the contract products from other suppliersand that neither the parties nor the joint undertakings or thirdundertakings entrusted with the exclusive distribution of thecontract products render it difficult for users and intermediaries tothus obtain the contract products.
▼
B
2. Article 1 shall also apply where the parties undertake obligations
of the types referred to in paragraph 1 but with a more limited scopethan is permitted by that paragraph.
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M1
2a. Article 1 shall not apply if restrictions of competition other thanthose set out in paragraphs 1 and 2 are imposed upon the parties byagreement, decision or concerted practice.
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B
3. Article 1 shall apply notwithstandingthat any of the followingobligations, in particular, are imposed:
(a) an obligation to supply other parties with products which are the
subject of the specialization and in so doingto observe minimumstandards of quality;
(b) an obligation to maintain minimum stocks of products which are the
subject of the specialization and of replacement parts for them;
(c) an obligation to provide customer and guarantee services for prod-
ucts which are the subject of the specialization.
Article 3
▼
M1
1. Article 1 shall apply only if
(a) the products which are the subject of the specialization together
with the participatingundertaking s’ other products which areconsidered by users to be equivalent in view of their characteristics,price and intended use do not represent more than 20 % of themarket for all such products in the common market or a substantialpart thereof; and
(b) the aggregate turnover of all the participating undertakings does not
exceed ECU 1 000 million.
2. If pursuant to point (d), (e) or (f) of Article 2 (1), one of the
parties, a joint undertaking, a third undertaking or more than one jointundertakingor third undertakingare entrusted with the distribution ofthe products which are the subject of the specialization, Article 1 shallapply only if:
(a) the products which are the subject of the specialization together
with the participatingundertaking s’ other products which areconsidered by users to be equivalent in view of their characteristics,price and intended use do not represent more than 10 % of themarket for all such products in the common market or a substantialpart thereof; and
(b) the aggregate annual turnover of all the participating undertakings
does not exceed ECU 1 000 million.
3. Article 1 shall continue to apply if the market shares and turnover
referred to in paragraphs 1 and 2 are exceeded during any period of twoconsecutive financial years by not more than one-tenth.
4. Where the limits laid down in paragraph 3 are also exceeded,
Article 1 shall continue to apply for a period of six months followingthe end of the financial year duringwhich they were exceeded.
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Article 4
1. The exemption provided for in Article 1 shall also apply to agree-
ments involving participating undertakings whose aggregate turnoverexceeds the limits laid down in ►
M1Article 3 (1) (b), (2) (b) and
(3)◄on condition that the agreements in question are notified to the
Commission in accordance with the provisions of Commission Regula-tion No 27 (
1), and that the Commission does not oppose such exemp-
tion within a period of six months.
2. The period of six months shall run from the date on which the
notification is received by the Commission. Where, however, the noti-fication is made by registered post, the period shall run from the dateshown on the postmark of the place of posting.
3. Paragraph 1 shall apply only if:
(a) express reference is made to this Article in the notification or in a
communication accompanyingit; and
(b) the information furnished with the notification is complete and in
accordance with the facts.
4. The benefit of paragraph 1 may be claimed for agreements noti-
fied before the entry into force of this Regulation by submitting acommunication to the Commission referringexpressly to this Articleand to the notification. Paragraphs 2 and 3 (b) shall apply mutatis
mutandis.
5. The Commission may oppose the exemption. It shall oppose
exemption if it receives a request to do so from a Member State withinthree months of the forwardingto the Member State of the notificationreferred to in paragraph 1 or of the communication referred to inparagraph 4. This request must be justified on the basis of considera-tions relatingto the competition rules of the Treaty.
6. The Commission may withdraw the opposition to the exemption at
any time. However, where the opposition was raised at the request of aMember State and this request is maintained, it may be withdrawn onlyafter consultation of the Advisory Committee on Restrictive Practicesand Dominant Positions.
7. If the opposition is withdrawn because the undertakings concerned
have shown that the conditions of Article 85 (3) are fulfilled, theexemption shall apply from the date of notification.
8. If the opposition is withdrawn because the undertakings concerned
have amended the agreement so that the conditions of Article 85 (3) arefulfilled, the exemption shall apply from the date on which the amend-ments take effect.
9. If the Commission opposes exemption and the opposition is not
withdrawn, the effects of the notification shall be governed by theprovisions of Regulation No 17.
Article 5
1. Information acquired pursuant to Article 4 shall be used only for
the purposes of this Regulation.
2. The Commission and the authorities of the Member States, their
officials and other servants shall not disclose information acquired bythem pursuant to this Regulation of a kind that is covered by theobligation of professional secrecy.
3. Paragraphs 1 and 2 shall not prevent publication of general infor-
mation or surveys which do not contain information relatingto partic-ular undertakings or associations of undertakings.
(1) OJ No 35, 10. 5. 1962, p. 1118/62.
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Article 6
For the purpose of calculatingtotal annual turnover within the meaning
of Article 3 (1) (b), ►M1and (2) (b) ◄the turnovers achieved during
the last financial year by the participatingundertaking s in respect of allgoods and services excluding tax shall be added together. For thispurpose, no account shall be taken of dealings between the participatingundertakings or between these undertakings and a third undertakingjointly charged with manufacture ►
M1or sale.◄
Article 7
1.►M1For the purposes of Article 3 (1) and (2) and Article 6,
participatingundertaking s are: ◄
(a) undertakings party to the agreement;
(b) undertakings in which a party to the agreement, directly or indir-
ectly:
— owns more than half the capital or business assets,— has the power to exercise more than half the votingrig hts,— has the power to appoint at least half the members of the
supervisory board, board of management or bodies legallyrepresentingthe undertaking s, or
— has the right to manage the affairs;
(c) undertakings which directly or indirectly have in or over a party to
the agreement the rights or powers listed in (b);
(d) undertakings in or over which an undertaking referred to in (c)
directly or indirectly has the rights or powers listed in (b).
2. Undertakings in which the undertakings referred to in paragraph 1
(a) to (d) directly or indirectly jointly have the rights or powers set outin paragraph 1 (b) shall also be considered to be participating undertak-ings.
Article 8
The Commission may withdraw the benefit of this Regulation, pursuant
to Article 7 of Regulation (EEC) No 2821/71, where it finds in aparticular case that an agreement exempted by this Regulation neverthe-less has effects which are incompatible with the conditions set out inArticle 85 (3) of the Treaty, and in particular where:
(a) the agreement is not yielding significant results in terms of rationa-
lization or consumers are not receivinga fair share of the resultingbenefit; or
(b) the products which are the subject of the specialization are not
subject in the common market or a substantial part thereof toeffective competition from identical products or products consid-ered by users to be equivalent in view of their characteristics, priceand intended use.
Article 9
This Regulation shall apply mutatis mutandis to decisions of associa-
tions of undertakings and concerted practices.
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A1
Article 9a
The prohibition in Article 85 (1) of the Treaty shall not apply to the
specialization agreements which were in existence at the date of theaccession of the Kingdom of Spain and of the Portuguese Republic andwhich, by reason of this accession, fall within the scope of Article 85(1), if, before 1 July 1986, they are so amended that they comply withthe conditions laid down in this Regulation.
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A2
As regards agreements to which Article 85 of the Treaty applies as aresult of the accession of Austria, Finland and Sweden, the precedingparagraph shall apply mutatis mutandis on the understandingthat the
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relevant dates shall be the date of accession of those countries and six
months after the date of accession respectively. However, this paragraphshall not apply to agreements which at the date of accession already fallunder Article 53 (1) of the EEA Agreement.
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B
Article 10
1. This Regulation shall enter into force on 1 March 1985. It shall
apply until 31 December 1997.
2. Commission Regulation (EEC) No 3604/82 (1) is hereby repealed.
This Regulation shall be binding in its entirety and directly applicable in
all Member States.
(1) OJ No L 376, 31. 12. 1982, p. 33.