Keywords

Summary



Keywords

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1. Competition - Administrative procedure - Ending of infringements - Adoption of provisional measures - Powers of the Commission - Conditions of exercise

(Council Regulation No 17, Art. 3(1) )

2. Competition - Agreements, decisions and concerted practices - Prohibition - Block exemptions - Regulation No 123/85 - Intermediaries between the distributor and the final user - Conditions - Exclusion of professional intermediaries - Prima facie not permissible

(Commission Regulation No 123/85, Art. 3(11); Commission communication of 12 December 1984)

3. Competition - Administrative procedure - Ending of infringements - Adoption of provisional measures - Prior finding of a prima facie infringement

(Council Regulation No 17, Art. 3(1) )

4. Competition - Administrative procedure - Ending of infringements - Adoption of provisional measures - Urgency - Balance of all the interests involved

(Council Regulation No 17, Art. 3(1) )

5 Procedure - Costs - Applicable rules - Applicability ratione temporis

Summary

1. It is for the Commission, in the exercise of the supervisory powers conferred on it by the Treaty and by Regulation No 17, to decide pursuant to Article 3(1) of that regulation whether it is appropriate to take interim measures when asked to do so. However, such measures must be provisional and be restricted to what is necessary in the circumstances of the case and must come within the framework of the final decision which may be adopted.

The Commission remains within that framework by requiring a supplier of motor vehicles to refrain, within certain limits, from complying with a circular which gives various instructions to the dealers in its distribution system until a decision is given on the substance, since that decision concerns the question whether or not that circular constitutes an infringement of Article 85(1) of the EEC Treaty.

2. By providing that the block exemption created by Regulation No 123/85 for certain distribution agreements in the motor-vehicle sector is to apply also where the distributor undertakes "to sell motor vehicles within the contract programme or corresponding goods to final consumers using the services of an intermediary only if that intermediary has prior written authorization to purchase a specified motor vehicle and, as the case may be, to accept delivery thereof on their behalf", Article 3(11) of that regulation intends to preserve the possibility of the intervention of an intermediary provided that there is a direct contractual relationship between the distributor and the final user. No provision whatsoever is made for the possibility of refusing to register orders for vehicles placed by an intermediary and to supply such vehicles to it. Since there was nothing in the position taken by the Commission, either in its communication of 12 December 1984 or in its reaction to an informal notification of a draft circular originating from a manufacturer and addressed to its distributors, to give the impression that such a refusal was permissible in relation to intermediaries acting in a professional capacity, it cannot be considered that by adopting a provisional measure requiring that manufacturer to refrain from having its distribution system prohibit the meeting of orders from such an intermediary, which it regards as being in breach of Article 85(1) of the Treaty, the Commission undermined the principle of legal certainty.

3. Where the Commission decides to adopt provisional measures under Article 3 of Regulation No 17, it is not required to establish a prima facie infringement of the competition rules with the same degree of certainty as that required for a final decision.

4. A case of urgency exists, justifying the adoption of provisional measures under Article 3(1) of Regulation No 17, prohibiting a motor-vehicle manufacturer from implementing certain measures intended to hamper the business of an undertaking acting as an intermediary in the motor trade where the effect of their application would be that the very existence of that intermediary would be jeopardized even though its business is in any event liable to have only a minimal impact on the operation of the manufacturer' s distribution system, in view of the fact that those measures limit the intermediary' s business to its previous volume.

5. Since they are in part a matter of substantive law in so far as they directly affect the interests of the parties to the proceedings, the rules to be applied for the apportionment of costs are those of the Rules of Procedure which are in force at the time when the oral proceedings are closed and the case enters the deliberation stage and not those in force on the date of delivery of judgment, that date in any event being uncertain.