Keywords

Summary



Keywords

1 . PROCEDURE - APPLICATION FOR ANNULMENT - MEASURE CONFIRMING A PREVIOUS MEASURE - INADMISSIBILITY

2 . PROCEDURE - COMPETITION - APPLICATION FOR A FINDING THAT AN INFRINGEMENT HAS OCCURRED - DECISION - APPLICATION FOR ANNULMENT - ADMISSIBILITY

( EEC TREATY , ARTICLES 85 , 86 AND SECOND PARAGRAPH OF ARTICLE 173 ; REGULATION NO 17 OF THE COUNCIL , ARTICLE 3 ( 2 ) ( B ))

3 . COMPETITION - DOMINANT POSITION ON THE MARKET - CONCEPT

( EEC TREATY , ARTICLE 86 )

4 . WORKABLE COMPETITION - CONCEPT

( EEC TREATY , ARTICLES 3 AND 85 )

5 . COMPETITION - SELECTIVE DISTRIBUTION SYSTEM - PERMISSIBLE - CONDITIONS

( EEC TREATY , ARTICLE 85 )

6 . COMPETITION - FORMS OF COMPETITION - PRICES AND OTHER FACTORS - SELECTIVE DISTRIBUTION - INCREASE IN THE NUMBER OF NETWORKS - REVIEW BY THE COMMISSION

( EEC TREATY , ARTICLE 85 )

7 . COMPETITION - SELECTIVE DISTRIBUTION SYSTEM - APPOINTED RESELLERS - CHECK THAT THE CONDITIONS FOR APPOINTMENT ARE SATISFIED - PERMISSIBLE

( EEC TREATY , ARTICLE 85 ( 1 ))

8 . COMPETITION - WHOLESALERS - RETAILERS - SEPARATION OF FUNCTIONS - PERMISSIBLE

( EEC TREATY , ARTICLE 85 )

9 . COMPETITION - WHOLESALERS - OBLIGATION TO PROMOTE SALES - PERMISSIBLE

10 . COMPETITION - NON-SPECIALIST WHOLESALERS - OBLIGATION TO OPEN A SPECIALIZED DEPARTMENT - OBLIGATION CONCERNING TURNOVER - PERMISSIBLE

Summary

1 . AN APPLICATION DIRECTED AGAINST A MEASURE WHICH IS MERELY A CONFIR- MATION OF A PREVIOUS MEASURE , SO THAT ANNULMENT OF THE CONFIRMATORY MEASURE WOULD FOLLOW FROM ANNUL- MENT OF THE PREVIOUS MEASURE , MUST BE CONSIDERED AS DEVOID OF PURPOSE AND ACCORDINGLY INADMISSIBLE .

2 . IT IS IN THE INTERESTS OF A SATISFACTORY ADMINISTRATION OF JUSTICE AND OF THE PROPER APPLICATION OF ARTICLES 85 AND 86 THAT NATURAL OR LEGAL PERSONS WHO ARE ENTITLED , PURSUANT TO ARTICLE 3 ( 2 ) ( B ) OF REGULATION NO 17 , TO REQUEST THE COMMISSION TO FIND AN INFRINGEMENT OF ARTICLES 85 AND 86 SHOULD BE ABLE , IF THEIR REQUEST IS DISMISSED EITHER WHOLLY OR IN PART , TO INSTITUTE PROCEEDINGS IN ORDER TO PROTECT THEIR LEGITIMATE INTERESTS . SUCH PERSONS MUST ACCORDINGLY BE CONSIDERED TO BE DIRECTLY AND INDIVIDUALLY CONCERNED , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 , BY THE DECISION OF THE COMMISSION .

3 . SHARES OF BETWEEN 5 AND 10 % OF A MARKET IN HIGHLY TECHNICAL PRODUCTS WHICH NEVERTHELESS APPEAR TO THE MAJORITY OF CONSUMERS TO BE READILY INTERCHANGEABLE RULE OUT THE EXISTENCE OF A DOMINANT POSITION UNLESS EXCEPTIONAL CIRCUMSTANCES OBTAIN . THE FACT THAT THE QUALITY OF A PRODUCT SHOULD ENCOURAGE DIS- TRIBUTORS TO INCLUDE IT IN THE RANGE WHICH THEY OFFER DOES NOT IN ITSELF CONSTITUTE A FACTOR CAPABLE OF PERMITTING THE PRODUCER TO OPERATE TO ANY GREAT EXTENT WITHOUT HAVING TO TAKE ACCOUNT OF THE ATTITUDE OF HIS COMPETITORS AND , CONSEQUENTLY , TO SECURE A DOMINANT POSITION ; RATHER , IT CONSTITUTES ONE MEANS OF COMPETITION AMONGST OTHERS . THIS ALSO APPLIES TO THE FACT THAT OTHER PRODUCERS HAVE ADOPTED OR ARE PREPARING TO ADOPT SYSTEMS FOR THE DISTRIBUTION OF THE GOODS AT ISSUE SIMILAR TO THAT ESTABLISHED BY THE DEALER IN QUESTION .

4 . THE REQUIREMENT CONTAINED IN ARTICLES 3 AND 85 OF THE EEC TREATY THAT COMPETITION SHALL NOT BE DISTORTED IMPLIES THE EXISTENCE ON THE MARKET OF WORKABLE COMPETITION , THAT IS TO SAY THE DEGREE OF COMPETITION NECESSARY TO ENSURE THE OBSERVANCE OF THE BASIC REQUIREMENTS AND THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY , IN PARTICULAR THE CREATION OF A SINGLE MARKET ACHIEVING CONDITIONS SIMILAR TO THOSE OF A DOMESTIC MARKET . IN ACCORDANCE WITH THIS REQUIREMENT THE NATURE AND INTENSIVENESS OF COMPETITION MAY VARY TO AN EXTENT DICTATED BY THE PRODUCTS OR SERVICES IN QUESTION AND THE ECONOMIC STRUCTURE OF THE RELEVANT MARKET SECTORS .

5 . SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE , TOGETHER WITH OTHERS , AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85 ( 1 ), PROVIDED THAT RESELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RESELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES AND THAT SUCH CONDITIONS ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RESELLERS AND ARE NOT APPLIED IN A DISCRIMINATORY FASHION .

6 . ALTHOUGH PRICE COMPETITION IS SO IMPORTANT THAT IT CAN NEVER BE ELIMINATED IT DOES NOT CONSTITUTE THE ONLY EFFECTIVE FORM OF COMPETITION OR THAT TO WHICH ABSOLUTE PRIORITY MUST IN ALL CIRCUMSTANCES BE ACCORDED . FOR SPECIALIST WHOLESALERS AND RETAILERS THE DESIRE TO MAINTAIN A CERTAIN PRICE LEVEL , WHICH CORRESPONDS TO THE DESIRE TO PRESERVE , IN THE INTERESTS OF CONSUMERS , THE POSSIBILITY OF THE CONTINUED EXISTENCE OF THIS CHANNEL OF DISTRIBUTION IN CONJUNCTION WITH NEW METHODS OF DISTRIBUTION BASED ON A DIFFERENT TYPE OF COMPETITION POLICY , FORMS ONE OF THE OBJECTIVES WHICH MAY BE PURSUED WITHOUT NECESSARILY FALLING UNDER THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ), AND , IF IT DOES FALL THEREUNDER , EITHER WHOLLY OR IN PART , COMING WITHIN THE FRAMEWORK OF ARTICLE 85 ( 3 ). THIS ARGUMENT IS STRENGTHENED IF , IN ADDITION , SUCH CONDITIONS PROMOTE IMPROVED COMPETITION INASMUCH AS IT RELATES TO FACTORS OTHER THAN PRICES . NEVERTHELESS , THE COMMISSION MUST ENSURE THAT THIS STRUCTURAL RIGIDITY IS NOT REINFORCED , AS MIGHT HAPPEN IF THERE WERE AN INCREASE IN THE NUMBER OF SELECTIVE DISTRIBUTION NETWORKS FOR MARKETING THE SAME PRODUCT .

7 . ANY MARKETING SYSTEM BASED UPON THE SELECTION OF OUTLETS NECESSARILY ENTAILS THE OBLIGATION ON WHOLESALERS FORMING PART OF THE NETWORK TO SUPPLY ONLY APPOINTED RESELLERS AND , ACCORDINGLY , THE RIGHT OF THE RELEVANT PRODUCER TO CHECK THAT THAT OBLIGATION IS FULFILLED . IN SO FAR AS THE OBLIGATIONS UNDERTAKEN IN CONNEXION WITH VERIFICATION ARE INTENDED TO ENSURE RESPECT FOR THE CONDITIONS OF APPOINTMENT REGARDING THE CRITERIA AS TO TECHNICAL QUALIFICATIONS , THEY DO NOT IN THEMSELVES CONSTITUTE A RESTRICTION ON COMPETITION BUT ARE THE COROLLARY OF THE PRINCIPAL OBLIGATION AND CONTRIBUTE TO ITS FULFILMENT . HOWEVER , IN SO FAR AS THEY GUARANTEE THE FULFILMENT OF MORE STRINGENT OBLIGATIONS , THEY FALL WITHIN THE TERMS OF THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ), UNLESS THEY , TOGETHER WITH THE PRINCIPAL OBLIGATION TO WHICH THEY ARE RELATED , ARE EXEMPTED , WHERE APPROPRIATE , PURSUANT TO ARTICLE 85 ( 3 ).

8 . THE SEPARATION OF THE FUNCTIONS OF WHOLESALER AND RETAILER WHEREBY WHOLESALERS ARE PROHIBITED FROM SUPPLYING PRIVATE CUSTOMERS , IN- CLUDING LARGE-SCALE CONSUMERS , IS IN PRINCIPLE IN ACCORDANCE WITH THE REQUIREMENT THAT COMPETITION SHALL NOT BE DISTORTED .

9 . SINCE THE FUNCTION OF A WHOLESALER IS NOT TO PROMOTE THE PRODUCTS OF A PARTICULAR MANUFACTURER BUT RATHER TO PROVIDE FOR THE RETAIL TRADE SUPPLIES OBTAINED ON THE BASIS OF COMPETITION BETWEEN MANUFACTURERS , OBLIGATIONS ENTERED INTO BY A WHOLESALER WHICH LIMIT HIS FREEDOM IN THIS RESPECT CONSTITUTE RESTRICTIONS ON COM- PETITION FALLING WITHIN THE AMBIT OF ARTICLE 85 ( 1 ).

10 . THE OBLIGATION ON NON-SPECIALIST WHOLESALERS TO OPEN A SPECIAL DEPARTMENT IS DESIGNED TO GUARANTEE THE SALE OF THE PRODUCTS CONCERNED UNDER APPROPRIATE CONDITIONS AND ACCORDINGLY DOES NOT CONSTITUTE A RESTRICTION ON COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ).

ON THE OTHER HAND , THE OBLIGATION TO ACHIEVE A TURNOVER COMPARABLE TO THAT OF A SPECIALIST WHOLESALER EXCEEDS THE STRICT REQUIREMENTS OF THE QUALITATIVE CRITERIA INHERENT IN A SELECTIVE DISTRIBUTION SYSTEM AND IT MUST ACCORDINGLY BE APPRAISED IN THE LIGHT OF ARTICLE 85 ( 3 ).