Keywords

Summary



Keywords

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1. Competition ° Agreements, decisions and concerted practices ° Competition impaired ° Cooperative association ° Fee for withdrawal or expulsion provided for in the statutes ° Criteria of assessment ° Anti-competitive object ° Anti-competitive effects ° Trade between Member States affected ° Actual economic context

(EC Treaty, Art. 85(1))

2. Agriculture ° Competition rules ° Regulation No 26 ° Cooperative association ° Fee for withdrawal or expulsion provided for in the statutes ° Derogation from the applicability of the competition rules laid down in the Treaty ° Conditions

(Council Regulation No 26)

3. Agriculture ° Competition rules ° Regulation No 26 ° Agreements, decisions and practices of cooperatives belonging to a single Member State ° Implementation ° Division of powers between the Commission and the national courts

(EC Treaty, Art. 85(1) and (3); Regulation No 26 of the Council, Art. 2(1))

Summary

1. In order to decide whether the withdrawal fee scheme under the statutes of a cooperative association, whereby if a member withdraws or is excluded he must pay a sum calculated on the basis of the amounts he received for his deliveries, is compatible with Article 85(1) of the EEC Treaty, the national court must consider the object of the agreement providing for such fees, the effects of that agreement and whether it affects intra-Community trade, taking into account the economic context in which the undertakings operate, the products or services covered by the agreement, the structure of the market concerned and the actual conditions in which it functions.

With regard first to the object of the agreements or the clauses in the statutes concerning the withdrawal fee, organizing an undertaking in the specific legal form of a cooperative association does not in itself constitute anti-competitive conduct. However, it does not follow that the provisions in the statutes governing relations between the association and its members, in particular those relating to the termination of the contractual link and those requiring the members to reserve their milk production for the association, automatically fall outside the prohibition in Article 85(1). In order to escape that prohibition, the restrictions imposed on members by the statutes of cooperative associations intended to secure their loyalty must be limited to what is necessary to ensure that the cooperative functions properly and in particular to ensure that it has a sufficiently wide commercial base and a certain stability in its membership.

With regard, next, to the effects of the agreements or the clauses in the statutes, a combination of clauses such as those requiring exclusive supply and payment of excessive fees on withdrawal, tying the members to the association for long periods and thereby depriving them of the possibility of approaching competitors, could have the effect of restricting competition. Such clauses are liable to render excessively rigid a market in which a limited number of traders operate who enjoy a strong competitive position and impose similar clauses, and of consolidating or perpetuating that position of strength, thereby hindering access to that market by other competing traders.

With regard, finally, to intra-Community trade, Community trade may be affected as a result of a combination of several factors which, taken in isolation, would not necessarily be decisive. An agreement between undertakings is to be regarded as liable to affect trade between Member States if in the light of certain considerations of law or fact it is capable of influencing the pattern of trade between Member States directly, indirectly, actually or potentially in a manner which may prejudice the aims of a single market between States.

2. Fees payable under the statutes of a cooperative association on withdrawal or exclusion may fall within the derogation provided for in Regulation No 26 applying certain rules of competition to production of and trade in agricultural products only if the agreement providing for them concerns a cooperative association belonging to a single Member State, does not cover prices but concerns rather the production or sale of agricultural products or the use of joint facilities for the storage, treatment or processing of such products, and finally does not exclude competition or jeopardize the objectives of the common agricultural policy.

With regard to the third condition, it cannot be ruled out that the cumulative effect of clauses in statutes tying the members to the association for long periods and thereby depriving them of the possibility of approaching competitors jeopardizes one of the objectives of the common agricultural policy, namely that of increasing individual earnings in the agricultural sector, in so far as those active in that sector will not be able to benefit from competition in purchase prices for raw materials paid by different processors.

3. A national court before which a party pleads the nullity of a clause in the statutes of an agricultural cooperative on the ground that it infringes Article 85(1) of the Treaty, and before which the cooperative seeks to rely on Article 2(1) of Regulation No 26 applying certain rules of competition to production of and trade in agricultural products, may continue the proceedings and adjudicate on the dispute if it is clear that the criteria for the application of Article 85(1) are not fulfilled, or may declare the clause void under Article 85(2) if it is certain that that provision does not fulfil the conditions for application of the exception laid down in Article 2(1) of Regulation No 26 and does not qualify for exemption under Article 85(3). Where there is any doubt, the national court may, if it is appropriate and consistent with the national rules of procedure, obtain additional information from the Commission or allow the parties to seek a decision from the Commission.