Commission notice concerning Commission Regulations (EEC) No 1983/83 and (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive distribution agreements and exclusive purchasing agreements

I. Introduction

1. Commission Regulation No 67/67/EEC of 22 March 1967 on the application of Article 85 (3) of the Treaty to certain categories of exclusive dealing agreements (1) expired on 30 June 1983 after being in force for over 15 years. With Regulations (EEC) No 1983/83 and (EEC) No 1984/83 (2), the Commission has adapted the block exemption of exclusive distribution agreements and exclusive purchasing agreements to the intervening developments in the common market and in Community law. Several of the provisions in the new Regulations are new. A certain amount of interpretative guidance is therefore called for. This will assist undertakings in bringing their agreements into line with the new legal requirements and will also help ensure that the Regulations are applied uniformly in all the Member States.

2. In determining how a given provision is to be applied, one must take into account, in addition to the ordinary meaning of the words used, the intention of the provision as this emerges from the preamble. For further guidance, reference should be made to the principles that have been evolved in the case law of the Court of Justice of the European Communities and in the Commission's decisions on individual cases.

3. This notice sets out the main considerations which will determine the Commission's view of whether or not an exclusive distribution or purchasing agreement is covered by the block exemption. The notice is without prejudice to the jurisdiction of national courts to apply the Regulations, although it may well be of persuasive authority in proceedings before such courts. Nor does the notice necessarily indicate the interpretation which might be given to the provisions by the Court of Justice.

II. Exclusive distribution and exclusive purchasing agreements (Regulations (EEC) No 1983/83 and (EEC) No 1984/83)

1. Similarities and differences

4. Regulations (EEC) No 1983/83 and (EEC) No 1984/83 are both concerned with exclusive agreements between two undertakings for the purpose of the resale of goods. Each deals with a particular type of such agreements. Regulation (EEC) No 1983/83 applies to exclusive distribution agreements, Regulation (EEC) No 1984/83 to exclusive purchasing agreements. The distinguishing feature of exclusive distribution agreements is that one party, the supplier, allots to the other, the reseller, a defined territory (the contract territory) on which the reseller has to concentrate his sales effort, and in return undertakes not to supply any other reseller in that territory. In exclusive purchasing agreements, the reseller agrees to purchase the contract goods only from the other party and not from any other supplier. The supplier is entitled to supply other resellers in the same sales area and at the same level of distribution. Unlike an exclusive distributor, the tied reseller is not protected against competition from other resellers who, like himself, receive the contract goods direct from the supplier. On the other hand, he is free of restrictions as to the area over which he may make his sales effort.

5. In keeping with their common starting point, the Regulations have many provisions that are the same or similar in both Regulations. This is true of the basic provision in Article 1, in which the respective subject-matters of the block exemption, the exclusive supply or purchasing obligation, are defined, and of the exhaustive list of restrictions of competition which may be agreed in addition to the exclusive supply or purchasing obligation (Article 2 (1) and (2)), the non-exhaustive enumeration of other obligations which do not prejudice the block exemption (Article 2 (3)), the inapplicability of the block exemption in principle, to exclusive agreements between competing manufacturers (Articles 3 (a) and (b), 4 and 5), the withdrawal of the block exemption in individual cases (Article 6 of Regulation (EEC) No 1983/83 and Article 14 of Regulation (EEC) No 1984/83), the transitional provisions (Article 7 of Regulation (EEC) No 1983/83 and Article 15 (1) of Regulation (EEC) No 1984/83), and the inclusion of concerted practices within the scope of the Regulations (Article 9 of Regulation (EEC) No 1983/83 and Article 18 of Regulation (EEC) No 1984/83). In so far as their wording permits, these parallel provisions are to be interpreted in the same way.

6. Different rules are laid down in the Regulations wherever they need to take account of matters which (1) OJ No 57, 25.3.1967, p. 849/67. (2) OJ No L 173, 30.6.1983, pp. 1 and 5.

are peculiar to the exclusive distribution agreements or exclusive purchasing agreements respectively. This is the case, in Regulation (EEC) No 1983/83, to the provisions regarding the obligation on the exclusive distributor not actively to promote sales outside the contract territory (Article 2 (2) (c) and the inapplicability of the block exemption to agreements which give the exclusive distributor absolute territorial protection (Article 3 (c) and (d)) and, in Regulation (EEC) No 1984/83, to the provisions limiting the scope and duration of the block exemption for exclusive purchasing agreements in general (Article 3 (c) and (d) and for beer-supply and service-station agreements in particular (Titles II and III).

7. The scope of the two Regulations has been defined so as to avoid any overlap (Article 16 of Regulation (EEC) No 1984/83).

2. Basic provision (Article 1)

8. Both Regulations apply only to agreements entered into for the purpose of the resale of goods to which not more than two undertakings are party.

(a) "For resale"

9. The notion of resale requires that the goods concerned be disposed of by the purchasing party to others in return for consideration. Agreements on the supply or purchase of goods which the purchasing party transforms or processes into other goods or uses or consumes in manufacturing other goods are not agreements for resale. The same applies to the supply of components which are combined with other components into a different product. The criterion is that the goods distributed by the reseller are the same as those the other party has supplied to him for that purpose. The economic identity of the goods is not affected if the reseller merely breaks up and packs the goods into other packages before resale.

10. Where the reseller performs additional operations to improve the quality, durability, appearance or taste of the goods (such as rustproofing of metals, sterilization of food or the addition of colouring matter or flavourings to drugs), the position will mainly depend on how much value the operation adds to the goods. Only a slight addition in value can be taken not to change the economic identity of the goods. In determining the precise dividing line in individual cases, trade usage in particular must be considered. The Commission applies the same principles to agreements under which the reseller is supplied with a concentrated extract for a drink which he has to dilute with water, pure alcohol or another liquid and to bottle before reselling.

(b) "Goods"

11. Exclusive agreements for the supply of services rather than the resale of goods are not covered by the Regulations. The block exemption still applies, however, where the reseller provides customer or after-sales services incidentally to the resale of the goods. Nevertheless, a case where the charge for the service is higher than the price of the goods would fall outside the scope of the Regulations.

12. The hiring out of goods in return for payment comes closer, economically speaking, to a resale of goods than to provision of services. The Commission therefore regards exclusive agreements under which the purchasing party hires out or leases to others the goods supplied to him as covered by the Regulations.

(c) "Only two undertakings party"

13. To be covered by the block exemption, the exclusive distribution or purchasing agreement must be between only one supplier and one reseller in each case. Several undertakings forming one economic unit count as one undertaking.

14. This limitation on the number of undertakings that may be party relates solely to the individual agreement. A supplier does not lose the benefit of the block exemption if he enters into exclusive distribution or purchasing agreements covering the same goods with several resellers.

15. The supplier may delegate the performance of his contractual obligations to a connected or independent undertaking which he has entrusted with the distribution of his goods, so that the reseller has to purchase the contract goods from the latter undertaking. This principle is expressly mentioned only in Regulation (EEC) No 1984/83 (Articles 1, 6 and 10), because the question of delegation arises mainly in connection with exclusive purchasing agreements. It also applies, however, to exclusive distribution agreements under Regulation (EEC) No 1983/83.

16. The involvement of undertakings other than the contracting parties must be confined to the execution of distribution operations. The parties may accept exclusive supply or purchase obligations only for themselves, and not impose them on third parties, since otherwise more than two undertakings would be party to the agreement. The obligation of the parties to ensure that the obligations they have accepted are discharged by connected undertakings is, however, covered by the block exemption.

3. Other restrictions on competition that are exempted (Article 2 (1) and (2) of the Regulations)

17. Apart from the exclusive supply obligation (Regulation (EEC) No 1983/83) or exclusive purchase obligation (Regulation (EEC) No 1984/83), obligations defined in Article 1 which must be present if the block exemption is to apply, the only other restrictions of competition that may be agreed by the parties are those set out in Article 2 (1) and (2). If they agree on further obligations restrictive of competition, the agreement as a whole is no longer covered by the block exemption and requires individual exemption. For example, an agreement will exceed the bounds of the Regulations if the parties relinquish the possibility of independently determining their prices or conditions of business or undertake to refrain from, or even prevent, crossborder trade, which the Regulations expressly state must not be impeded. Among other clauses which in general are not permissible under the Regulations are those which impede the reseller in his free choice of customers.

18. The other obligations restrictive of competition that are exempted may be agreed only for the duration of the agreement. This also applies to restrictions accepted by the supplier or reseller on competing with the other party.

4. Obligations upon the reseller which do not prejudice the block exemption (Article 2 (3))

19. The obligations cited in this provision are examples of clauses which generally do not restrict competition. Undertakings are therefore free to include one, several or all of these obligations in their agreements. However, the obligations may not be formulated or applied in such a way as to take on the character of restrictions of competition that are not permitted. To forestall this danger, Article 2 (3) (b) of Regulation (EEC) No 1984/83 expressly allows minimum purchase obligations only for goods that are subject to an exclusive purchasing obligation.

20. As part of the obligation to take measures for promotion of sales and in particular to maintain a distribution network (Article 2 (3) (c) of Regulation (EEC) No 1983/83 and Article 2 (3) (d) of Regulation (EEC) No 1984/83), the reseller may be forbidden to supply the contract goods to unsuitable dealers. Such clauses are unobjectionable if admission to the distribution network is based on objective criteria of a qualitative nature relating to the professional qualifications of the owner of the business or his staff or the suitability of his business premises, if the criteria are the same for all potential dealers, and if the criteria are actually applied in a non-discriminatory manner. Distribution systems which do not fulfil these conditions are not covered by the block exemption.

5. Inapplicability of the block exemption to exclusive agreements between competing manufacturers (Articles 3 (a) and (b), 4 and 5)

21. The block exemption does not apply if either the parties themselves or undertakings connected with them are manufacturers, manufacture goods belonging to the same product market, and enter into exclusive distribution or purchasing agreements with one another in respect of those goods. Only identical or equivalent goods are regarded as belonging to the same product market. The goods in question must be interchangeable. Whether or not this is the case must be judged from the vantage point of the user, normally taking the characteristics, price and intended use of the goods together. In certain cases, however, goods can form a separate market on the basis of their characteristics, their price or their intended use alone. This is true especially where consumer preferences have developed. The above provisions are applicable regardless of whether or not the parties or the undertakings connected with them are based in the Community and whether or not they are already actually in competition with one another in the relevant goods inside or outside the Community.

22. In principle, both reciprocal and non-reciprocal exclusive agreements between competing manufacturers are not covered by the block exemption and are therefore subject to individual scrutiny of their compatibility with Article 85 of the Treaty, but there is an exception for non-reciprocal agreements of the abovementioned kind where one or both of the parties are small or medium-sized undertakings with a total annual turnover of no more than 100 million ECU (Article 3 (b)). Annual turnover is used as a measure of the economic strength of the undertakings involved. Therefore, the aggregate turnover from goods and services of all types, and not only from the contract goods, is to be taken. Turnover taxes and other turnover-related levies are not included in turnover. Where a party belongs to a group of connected undertakings, the world-wide turnover of the group, excluding intra-group sales (Article 5 (3)), is to be used.

23. The total turnover limit can be exceeded during any period of two successive financial years by up to 10 % without loss of the block exemption. The block exemption is lost if, at the end of the second financial year, the total turnover over the preceding two years has been over 220 million ECU (Article 5 (2)).

6. Withdrawal of the block exemption in individual cases (Article 6 of Regulation (EEC) No 1983/83 and Article 14 of Regulation (EEC) No 1984/83)

24. The situations described are meant as illustrations of the sort of situations in which the Commission can exercise its powers under Article 7 of Council Regulation No 19/65/EEC (1) to withdraw a block exemption. The benefit of the block exemption can only be withdrawn by a decision in an individual case following proceedings under Regulation No 17. Such a decision cannot have retroactive effect. It may be coupled with an individual exemption subject to conditions or obligations or, in an extreme case, with the finding of an infringement and an order to bring it to an end.

7. Transitional provisions (Article 7 of Regulation (EEC) No 1983/83 and Article 15 (1) of Regulation (EEC) No 1984/83)

25. Exclusive distribution or exclusive purchasing agreements which were concluded and entered into force before 1 January 1984 continue to be exempted under the provisions of Regulation No 67/67/EEC until 31 December 1986. Should the parties wish to apply such agreements beyond 1 January 1987, they will either have to bring them into line with the provisions of the new Regulations or to notify them to the Commission. Special rules apply in the case of beer-supply and service-station agreements (see paragraphs 64 and 65 below).

8. Concerted practices (Article 9 of Regulation (EEC) No 1983/83 and Article 18 of Regulation (EEC) No 1984/83

26. These provisions bring within the scope of the Regulations exclusive distribution and purchasing arrangements which are operated by undertakings but are not the subject of a legally-binding agreement.

III. Exclusive distribution agreements (Regulation (EEC) No 1983/83)

1. Exclusive supply obligation (Article 1)

27. The exclusive supply obligation does not prevent the supplier from providing the contract goods to other resellers who afterwards sell them in the exclusive distributor's territory. It makes no difference whether the other dealers concerned are established outside or inside the territory. The supplier is not in breach of his obligation to the exclusive distributor provided that he supplies the resellers who wish to sell the contract goods in the territory only at their request and that the goods are handed over outside the territory. It does not matter whether the reseller takes delivery of the goods himself ot through an intermediary, such as a freight forwarder. However, supplies of this nature are only permissible if the reseller and not the supplier pays the transport costs of the goods into the contract territory.

28. The goods supplied to the exclusive distributor must be intended for resale in the contract territory. This basic requirement does not, however, mean that the exclusive distributor cannot sell the contract goods to customers outside his contract territory should he receive orders from them. Under Article 2 (2) (c), the supplier can prohibit him only from seeking customers in other areas, but not from supplying them.

29. It would also be incompatible with the Regulation for the exclusive distributor to be restricted to supplying only certain categories of customers (e.g. specialist retailers) in his contract territory and prohibited from supplying other categories (e.g. department stores), which are supplied by other resellers appointed by the supplier for that purpose. (1) OJ No 36, 6.3.1965, p. 533/65.

2. Restriction on competition by the supplier (Article 2 (1))

30. The restriction on the supplier himself supplying the contract goods to final users in the exclusive distributor's contract territory need not be absolute. Clauses permitting the supplier to supply certain customers in the territory - with or without payment of compensation to the exclusive distributor - are compatible with the block exemption provided the customers in question are not resellers. The supplier remains free to supply the contract goods outside the contract territory to final users based in the territory. In this case the position is the same as for dealers (see paragraph 28 above).

3. Inapplicability of the block exemption in cases of absolute territorial protection (Articles 3 (c) and (d))

31. The block exemption cannot be claimed for agreements that give the exclusive distributor absolute territorial protection. If the situation described in Article 3 (c) obtains, the parties must ensure either that the contract goods can be sold in the contract territory by parallel importers or that users have a real possibility of obtaining them from undertakings outside the contract territory, if necessary outside the Community, at the prices and on the terms there prevailing. The supplier can represent an alternative source of supply for the purposes of this provision if he is prepared to supply the contract goods on request to final users located in the contract territory.

32. Article 3 (d) is chiefly intended to safeguard the freedom of dealers and users to obtain the contract goods in other Member States. Action to impede imports into the Community from third countries will only lead to loss of the block exemption if there are no alternative sources of supply in the Community. This situation can arise especially where the exclusive distributor's contract territory covers the whole or the major part of the Community.

33. The block exemption ceases to apply as from the moment that either of the parties takes measures to impede parallel imports in the contract territory. Agreements in which the supplier undertakes with the exclusive distributor to prevent his other customers from supplying into the contract territory are ineligible for the block exemption from the outset. This is true even if the parties agree only to prevent imports into the Community from third countries. In this case it is immaterial whether or not there are alternative sources of supply in the Community. The inapplicability of the block exemption follows from the mere fact that the agreement contains restrictions on competition which are not covered by Article 2 (1).

IV. Exclusive purchasing agreements (Regulation (EEC) No 1984/83)

1. Structure of the Regulation

34. Title I of the Regulation contains general provisions for exclusive purchasing agreements and Titles II and III special provisions for beer-supply and service-station agreements. The latter types of agreement are governed exclusively by the special provisions, some of which (Articles 9 and 13), however, refer to some of the general provisions. Article 17 also excludes the combination of agreements of the kind referred to in Title I with those of the kind referred to in Titles II or III to which the same undertakings or undertakings connected with them are party. To prevent any avoidance of the special provisions for beer-supply and service-station agreements, it is also made clear that the provisions governing the exclusive distribution of goods do not apply to agreements entered into for the resale of drinks on premises used for the sale or consumption of beer or for the resale of petroleum products in service stations (Article 8 of Regulation (EEC) No 1983/83).

2. Exclusive purchasing obligation (Article 1)

35. The Regulation only covers agreements whereby the reseller agrees to purchase all his requirements for the contract goods from the other party. If the purchasing obligation relates to only part of such requirements, the block exemption does not apply. Clauses which allow the reseller to obtain the contract goods from other suppliers, should these sell them more cheaply or on more favourable terms than the other party, are still covered by the block exemption. The same applies to clauses releasing the reseller from his exclusive purchasing obligation should the other party be unable to supply.

36. The contract goods must be specified by brand or denomination in the agreement. Only if this is done will it be possible to determine the precise scope of the reseller's exclusive purchasing obligation (Article 1) and of the ban on dealing in competing products (Article 2 (2)).

3. Restriction on competition by the supplier (Article 2 (1))

37. This provision allows the reseller to protect himself against direct competition from the supplier in his principal sales area. The reseller's principal sales area is determined by his normal business activity. It may be more closely defined in the agreement. However, the supplier cannot be forbidden to supply dealers who obtain the contract goods outside this area and afterwards resell them to customers inside it or to appoint other resellers in the area.

4. Limits of the block exemption (Article 3 (c) and (d))

38. Article 3 (c) provides that the exclusive purchasing obligation can be agreed for one or more products, but in the latter case the products must be so related as to be thought of as belonging to the same range of goods. The relationship can be founded on technical (e.g., a machine, accessories and spare parts for it) or commercial grounds (e.g. several products used for the same purpose) or on usage in the trade (different goods that are customarily offered for sale together). In the latter case, regard must be had to the usual practice at the reseller's level of distribution on the relevant market, taking into account all relevant dealers and not only particular forms of distribution. Exclusive purchasing agreements covering goods which do not belong together can only be exempted from the competition rules by an individual decision.

39. Under Article 3 (d), exclusive purchasing agreements concluded for an indefinite period are not covered by the block exemption. Agreements which specify a fixed term but are automatically renewable unless one of the parties gives notice to terminate are to be considered to have been concluded for an indefinite period.

V. Beer-supply agreements (Title II of Regulation (EEC) No 1984/83

1. Exclusive purchasing obligation (Article 6)

40. The beers and other drinks covered by the exclusive purchasing obligation must be specified by brand or denomination in the agreement. An exclusive purchasing obligation can only be imposed on the reseller for drinks which the supplier carries at the time the contract takes effect and provided that they are supplied in the quantities required, at sufficiently regular intervals and at prices and on conditions allowing normal sales to the consumer. Any extension of the exclusive purchasing obligation to drinks not specified in the agreement requires an additional agreement, which must likewise satisfy the requirements of Title II of the Regulation. A change in the brand or denomination of a drink which in other respects remains unchanged does not constitute such an extension of the exclusive purchasing obligation.

41. The exclusive purchasing obligation can be agreed in respect of one or more premises used for the sale and consumption of drinks which the reseller runs at the time the contract takes effect. The name and location of the premises must be stated in the agreement. Any extension of the exclusive purchasing obligation to other such premises requires an additional agreement, which must likewise satisfy the provisions of Title II of the Regulation.

42. The concept of premises used for the sale and consumption of drinks'covers any premises used for this purpose. Private clubs are also included. Exclusive purchasing agreements between the supplier and the operator of an off-licence shop are governed by the provisions of Title I of the Regulation.

43. Special commercial or financial advantages are those going beyond what the reseller could normally expect under an agreement. The explanations given in the 13th recital are illustrations. Whether or not the supplier is affording the reseller special advantages depends on the nature, extent and duration of the obligations undertaken by the parties. In doubtful cases usage in the trade is the decisive element.

44. The reseller can enter into exclusive purchasing obligations both with a brewery in respect of beers of a certain type and with a drinks wholesaler in respect of beers of another type and/or other drinks. The two agreements can be combined into one document. Article 6 also covers cases where the drinks wholesaler performs several functions at once, signing the first agreement on the brewery's and the second on his own behalf and also undertaking delivery of all the drinks. The provisions of Title II do not apply to the contractual relations between the brewery and the drinks wholesaler.

45. Article 6 (2) makes the block exemption also applicable to cases in which the supplier affords the owner of premises financial or other help in equipping them as a public house, restaurant, etc., and in return the owner imposes on the buyer or tenant of the premises an exclusive purchasing obligation in favour of the supplier. A similar situation, economically speaking, is the transmission of an exclusive purchasing obligation from the owner of a public house to his successor. Under Article 8 (1) (e) this is also, in principle, permissible.

2. Other restrictions of competition that are exempted (Article 7)

46. The list of permitted obligations given in Article 7 is exhaustive. If any further obligations restricting competition are imposed on the reseller, the exclusive purchasing agreement as a whole is no longer covered by the block exemption.

47. The obligation referred to in paragraph 1 (a) applies only so long as the supplier is able to supply the beers or other drinks specified in the agreement and subject to the exclusive purchasing obligation in sufficient quantities to cover the demand the reseller anticipates for the products from his customers.

48. Under paragraph 1 (b), the reseller is entitled to sell beer of other types in draught form if the other party has tolerated this in the past. If this is not the case, the reseller must indicate that there is sufficient demand from his customers to warrant the sale of other draught beers. The demand must be deemed sufficient if it can be satisfied without a simultaneous drop in sales of the beers specified in the exclusive purchasing agreement. It is definitely not sufficient if sales of the additional draught beer turn out to be so slow that there is a danger of its quality deteriorating. It is for the reseller to assess the potential demand of his customers for other types of beer ; after all, he bears the risk if his forecasts are wrong.

49. The provision in paragraph 1 (c) is not only intended to ensure the possibility of advertising products supplied by other undertakings to the minimum extent necessary in any given circumstances. The advertising of such products should also reflect their relative importance vis-à-vis the competing products of the supplier who is party to the exclusive purchasing agreement. Advertising for products which the public house has just begun to sell may not be excluded or unduly impeded.

50. The Commission believes that the designations of types customary in inter-State trade and within the individual Member States may afford useful pointers to the interpretation of Article 7 (2). Nevertheless the alternative criteria stated in the provision itself are decisive. In doubtful cases, whether or not two beers are clearly distinguishable by their composition, appearance or taste depends on custom at the place where the public house is situated. The parties may, if they wish, jointly appoint an expert to decide the matter.

3. Agreements excluded from the block exemption (Article 8)

51. The reseller's right to purchase drinks from third parties may be restricted only to the extent allowed by Articles 6 and 7. In his purchases of goods other than drinks and in his procurement of services which are not directly connected with the supply of drinks by the other party, the reseller must remain free to choose his supplier. Under Article 8 (1) (a) and (b), any action by the other party or by an undertaking connected with or appointed by him or acting at his instigation or with his agreement to prevent the reseller exercising his rights in this regard will entail the loss of the block exemption. For the purposes of these provisions it makes no difference whether the reseller's freedom is restricted by contract, informal understanding, economic pressures or other practical measures.

52. The installation of amusement machines in tenanted public houses may by agreement be made subject to the owner's permission. The owner may refuse permission on the ground that this would impair the character of the premises or he may restrict the tenant to particular types of machines. However, the practice of some owners of tenanted public houses to allow the tenant to conclude contracts for the installation of such machines only with certain undertakings which the owner recommends is, as a rule, incompatible with this Regulation. Such private restrictions affecting the operations of undertakings installing amusement machines are not in breach of Community law, however, if the undertakings are selected on the basis of objective criteria of a qualitative nature that are the same for all potential providers of such equipment and are applied in a non-discriminatory manner. Such criteria may refer to the reliability of the undertaking and its staff and the quality of the services it provides. The supplier may not prevent a public house tenant from purchasing amusement machines rather than renting them.

53. The limitation of the duration of the agreement in Article 8 (1) (c) and (d) does not affect the parties' right to renew their agreement in accordance with the provisions of Title II of the Regulation.

54. Article 8 (2) (b) must be interpreted in the light both of the aims of the Community competition rules and of the general legal principle whereby contracting parties must exercise their rights in good faith.

55. Whether or not a third undertaking offers certain drinks covered by the exclusive purchasing obligation on more favourable terms than the other party for the purposes of the first indent of Article 8 (2) (b) is to be judged in the first instance on the basis of a comparison of prices. This should take into account the various factors that go to determine the prices. If a more favourable offer is available and the tenant wishes to accept it, he must inform the other party of his intentions without delay so that the other party has an opportunity of matching the terms offered by the third undertaking. If the other party refuses to do so or fails to let the tenant have his decision within a short period, the tenant is entitled to purchase the drinks from the other undertaking. The Commission will ensure that exercise of the right to quote competing prices does not mean that brewers and wholesalers make it significantly harder thereby for other suppliers to have access to the market.

56. The tenant's right provided for in the second indent of Article 8 (2) (b) to purchase drinks of another brand or denomination from third undertakings obtains both in cases where the other party does not offer them at all and in cases where he does not offer them in sufficient quantities or at regular enough intervals. Here the tenant is not under a duty to inform the other party of his intentions.

57. The tenant's rights arising from Article 8 (2) (b) override any obligation to purchase minimum quantities imposed upon him under Article 9 in conjunction with Article 2 (3) (b) to the extent that this is necessary to allow the tenant full exercise of those rights.

VI. Service-station agreements (Title III of Regulation (EEC) No 1984/83)

1. Exclusive purchasing obligation (Article 10)

58. The exclusive purchasing obligation can cover either motor vehicle fuels (e.g., petrol, diesel fuel, LPG, kerosene) alone or motor vehicle fuels and other fuels (e.g., heating oil, bottled gas, paraffin). All the goods concerned must be petroleum-based products.

59. The motor vehicle fuels covered by the exclusive purchasing obligation must be for use in motor-powered land or water vehicles or aircraft. The term "service station" is to be interpreted in a correspondingly wide sense.

60. The Regulation applies to petrol stations adjoining public roads and fuelling installations on private property not open to public traffic.

2. Other restrictions on competition that are exempted (Article 11)

61. Under Article 11 (b) only the use of lubricants and related petroleum-based products supplied by other undertakings can be prohibited. This provision refers to the servicing and maintenance of motor vehicles, i.e. to the reseller's activity in the field of provision of services. It does not affect the reseller's freedom to purchase the said products from other undertakings for resale in the service station. The petroleum-based products related to lubricants referred to in paragraph (b) are additives and brake fluids.

62. For the interpretation of Article 11 (c), the considerations stated in paragraph 49 above apply by analogy.

3. Agreements excluded from the block exemption (Article 12)

63. These provisions are analogous to those of Article 8 (1) (a), (b), (d) and (e) and 8 (2) (a). Reference is therefore made to paragraphs 51 and 53 above.

VII. Transitional provisions for beer-supply and service-station agreements (Article 15 (2) and (3))

64. Under Article 15 (2), all beer-supply and service-station agreements which were concluded and entered into force before 1 January 1984 remain covered by the provision of Regulation No 67/67/EEC until 31 December 1988. From 1 January 1989 they must comply with the provisions of Titles II and III of Regulation (EEC) No 1984/83. Under Article 15 (3), in the case of agreements which were in force on 1 July 1983, the same principle applies except that the 10-year maximum duration for such agreements laid down in Article 8 (1) (d) and Article 12 (1) (c) may be exceeded.

65. The sole requirement for the eligible beersupply and service-station agreements to continue to enjoy the block exemption beyond 1 January 1989 is that they be brought into line with the new provisions. It is left to the undertakings concerned how they do so. One way is for the parties to agree to amend the original agreement, another for the supplier unilaterally to release the reseller from all obligations that would prevent the application of the block exemption after 1 January 1989. The latter method is only mentioned in Article 15 (3) in relation to agreements in force on 1 July 1983. However, there is no reason why this possibility should not also be open to parties to agreements entered into between 1 July 1983 and 1 January 1984.

66. Parties lose the benefit of application of the transitional provisions if they extend the scope of their agreement as regards persons, places or subject matter, or incorporate into it additional obligations restrictive of competition. The agreement then counts as a new agreement. The same applies if the parties substantially change the nature or extent of their obligations to one another. A substantial change in this sense includes a revision of the purchase price of the goods supplied to the reseller or of the rent for a public house or service station which goes beyond mere adjustment to the changing economic environment.