Keywords

Summary



Keywords

++++

1 . State monopolies of a commercial character - Provisions of the Treaty - Applicability to monopolies over the provision of services - Conditions

( EEC Treaty, Art . 37 )

2 . State monopolies of a commercial character - Concept - Supervision of trade patterns between Member States by the national authorities - Number of concessions granted by the communes to undertakings belonging to the same group - Exclusion

( EEC Treaty, Art . 37 )

3 . Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Concept - Grant by a public authority of a concession to operate a public service - Exclusion

( EEC Treaty, Art . 85 )

4 . Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Concept - Agreements between parent company and subsidiaries allocating tasks within an economic unit - Exclusion

( EEC Treaty, Art . 85 )

5 . Competition - Dominant position - Number of communal monopolies in funerals granted to the same group of undertakings - Application of Article 86 of the Treaty - Conditions

( EEC Treaty, Art . 86 )

6 . Competition - Undertakings to which the Member States grant exclusive rights - Observance of the competition rules in the Treaty - Imposition of unfair prices - Prohibition

( EEC Treaty, Arts 85, 86 and 90 ( 1 ) )

Summary

1 . It follows both from the place occupied by Article 37 in the chapter of the EEC Treaty on the elimination of quantitative restrictions and from the wording used in that provision that it refers to trade in goods and cannot relate to a monopoly over the provision of services .

However, the possibility cannot be ruled out that a monopoly over the provision of services may have an indirect influence on trade in goods between Member States, in particular where the monopoly over the provision of certain services established by an undertaking or by a group of undertakings leads to discrimination against imported products as opposed to products of domestic origin .

2 . Article 37 of the Treaty applies in particular to situations in which the national authorities are in a position to supervise, determine or even appreciably influence trade between Member States through a body established for that purpose or a monopoly delegated to others, which can be operated either by an undertaking or by territorial units of the State .

That is not the case where national legislation entrusts the "external services" for funerals to the communes, which are at liberty to grant private undertakings the concession to provide the service, to leave it entirely unregulated or to operate it themselves . The fact that the holders of concessions in a number of communes covering a large part of the national territory belong to a single group of undertakings and can thus influence patterns of trade is the result of the conduct of the undertakings in question and not of the national or municipal authorities .

3 . Article 85 of the Treaty applies, according to its actual wording, to agreements "between undertakings", and not to contracts for concessions concluded between communes acting in their capacity as public authorities and undertakings entrusted with the operation of a public service .

4 . Article 85 of the Treaty is not concerned with agreements or concerted practices between undertakings belonging to the same concern and having the status of parent company and subsidiary, if the undertakings form an economic unit within which the subsidiary has no real freedom to determine its course of action on the market, and if the agreements or practices are concerned merely with the internal allocation of tasks as between the undertakings .

5 . Article 86 of the Treaty applies in a case in which a number of communal monopolies are granted to a single group of undertakings whose market strategy is determined by the parent company, in a situation in which those monopolies cover a certain part of the national territory and relate to the external services for funerals,

where the activities of the group, and the monopoly enjoyed by the undertakings in question over a part of the territory of a Member State, affect the importation of goods from other Member States or the possibility for competing undertakings established in other Member States to provide services in the first-mentioned Member State;

where the group of undertakings occupies a dominant position characterized by a position of economic strength which enables it to hinder effective competition on the market in funerals; and

where that group of undertakings charges unfair prices, even though the level of those prices is fixed by the contract specifications which form part of the conditions of the contract for the concession .

6 . Article 90 ( 1 ) of the Treaty precludes public authorities, at national as well as regional or local level, from imposing on undertakings to which they have granted exclusive rights, such as a monopoly in the provision of the external services for funerals, any conditions as to price that are contrary to Articles 85 and 86 .