4.

Although the factual requirements of Article 85 (1) of the EEC Treaty are thus met, the Commission takes the view that the non-competition clause falls outside the scope of that provision of the EEC Treaty for a four-year period ending on 31 October 1983. Whilst the Commission based its view on a previous decision, ( 6 ) it did not, however, grant an exemption under Article 85 (3) of the EEC Treaty from the prohibition of restrictive agreements. I now turn to the question whether it is possible for the prohibition in Article 85 (1) not to be applied to agreements in restraint of competition which in theory fall within its scope without adopting the exemption procedure under Article 85 (3). If the answer to that question is positive it will then remain to be examined what rules of law must apply in the case of such a ‘non-application’ of Article 85 (1) of the EEC Treaty. While an answer to that question is of no importance for the period ending on 31 October 1983 it is crucial as regards the period for which the defendant held Article 85 (1) to be applicable, that is, the period from October 1983 to October 1989. To my knowledge the Court of Justice has not had to deal with a non-application of Article 85 (1) of the EEC Treaty outside the context of the exemption procedure under Article 85 (3). Although the non-application of Article 85 (1) finds no immediate support in the Treaty its permissibility is accepted in academic writings, in particular in the case of agreements for the transfer of undertakings. ( 7 ) Such exceptions to the prohibition of restrictive agreements are also to be found in national competition law. ( 8 ) In the national field certain prohibitions of competition are common both in contractual agreements and in legislation, for instance in the case of commercial agents, partners and members of the boards of companies. However, where the applicability of the competition rules in the EEC Treaty is concerned it can make no difference whether prohibitions of competition are created by contractual agreement or by legislation. While it is true that the rules on competition ‘are concerned with the conduct of undertakings and not with national legislation, Member States are none the less obliged under the second paragraph of Article 5 of the Treaty not to detract, by means of national legislation, from the full and uniform application of Community law... ; nor may they introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings.’ ( 9 ) It follows that a non-application of Article 85 (1) to the agreements at issue in this case can only be justified by reference to principles of Community law. In academic writings on Community law it is argued that, taken in the abstract, restrictions on competition agreed in the context of agreements for the transfer of undertakings may in principle be regarded as satisfying the factual criteria contained in Article 85 (1) of the EEC Treaty. Nevertheless, it is argued, they must be seen in the light of their commercial context since they may be necessary in order to enable certain economic assets to be transferred in the first place. That is so particularly in cases where there is a transfer of clientèle, other forms of goodwill and knowhow, which often represent a significant proportion of the assets of an undertaking. Since undertakings constitute a kind of property which may be the subject-matter of a contract of sale, some restrictions on competition agreed in connection with the transfer of an undertaking must to some extent be accepted. Even where such an agreement does not contain an express term to that effect its meaning and purpose are such that the vendor must be under an obligation not to compete with the purchaser for a reasonable period. A vendor who has transferred his custom for value cannot be allowed to attract it back to himself or exert a decisive influence on it by direct competition immediately afterwards. For that reason a prohibition of competition which is indispensable to the sale of an undertaking cannot be unlawful although it may not go beyond the limits of what is strictly necessary in terms of geographical scope, duration and subject-matter. I, too, agree that an exception, to the extent described above, to the prohibition of restrictive agreements laid down in Article 85 (1) of the EEC Treaty is both conceivable and practicable. Although such prohibitions of competition, which form an inherent part in any takeover, are not expressly referred to in Article 85 (3), they may be permissible in so far as the purchaser of an undertaking is to be protected from the competition of the vendor who might otherwise deprive the purchaser of his part of the bargain and thereby defeat the purpose of the agreement for sale. Just as Article 85 (3) provides for an exemption in the case of restrictions on competition which are indispensable to the attainment of the positive aims referred to in that paragraph, I think that a non-application of the prohibition of restrictive agreements is possible where the restrictions are indispensable to the attainment of legally permissible contractual aims, such as the performance of an agreement for the sale of an undertaking. Such a non-application of Article 85 (1) of the EEC Treaty outside the terms of Article 85 (3) must in my view be governed by criteria similar to those contained in Article 85 (3). In this case I would have no hesitation in applying by analogy the provisions adopted pursuant to Article 87 of the EEC Treaty. That would mean inter alia that on the basis of Article 8 of Regulation No. 17 a decision not to apply Article 85 (1) should be granted for a specified period. If this is right and the principles regarding exemption from the prohibition of restrictive agreements may be applied to this case by analogy, a further consequence will follow regarding the scope for judicial review of the Commission's decision. Since the conditions for an exemption are outlined only in a general manner, the Commission enjoys a wide discretion even in the case of a straightforward application of Article 85 (3). The Court of Justice has recognized that Article 85 (3) necessarily implies complex assessments of economic matters. Similarly, where such assessments are made in the case of prohibitions of competition agreed in connection with transfers of undertakings, the judicial review must take that fact into account and therefore confine itself to determining the correctness of the facts on which the assessments are based and the applicability to those facts of the relevant legal principles. As the Court of Justice has stated, judicial review must in the first place be carried out in respect of the reasons given for the Commission's decision, which must set out the facts and considerations on which the said assessments are based. ( 10 ) If then I examine the defendant's decision in the light of those principles I come to the conclusion that Article 1 of the decision is not open to objection. The defendant has acknowledged in principle that it may be necessary to impose on the vendor contractual restrictions on competition. It also stated that that protection cannot be unlimited but must be restricted to the minimum that will enable the purchaser to assume the place in the market previously occupied by the seller by means of active competitive behaviour. Finally, it found that it was not possible to prescribe any length of time as being universally suitable as a period of protection and then to set out the criteria which it regarded as relevant. If it is borne in mind that Remia was initially licensed to use Luycks's established trademark for two years, that the production of the products in question did not require high technology, and also that at least some of Nutricia's sales staff were transferred to Remia, the Commission cannot be criticized for having limited the duration of the non-competition clause for two further years. At all events I am unable to see why a period of four years (two years under the Luycks trademark and two years without Luycks as a competitor) should not have enabled Remia to assume the place in the market previously occupied by the seller by means of active competition. In particular the applicants' contention that, in determining whether Article 85 (1) is applicable, the Commission should have taken account of the financial position of the undertakings concerned and the fact that the non-competition clause enabled jobs to be preserved, is not a sufficient argument for invalidating the principal point of the Commission's decision, namely that Article 85 (1) of the EEC Treaty became applicable to the non-competition clause after four years. If we accept the proposition — which is tenable — that the non-application of the prohibition of restrictive agreements in the case of agreements for the sale of undertakings is justified for the reason stated above, namely that the purchaser must be assured of the acquisition of an undertaking he has purchased in order to be able to assume the place in the market previously occupied by the seller by means of active competition, it then becomes necessary to examine precisely what Mr de Rooij actually acquired from Nutricia. He did acquire: the Remia undertaking, the right to sell consumer products manufactured by or on behalf of Remia for an unlimited period, and the right to sell sauces manufactured by or on behalf of Luycks for a limited period. He did not acquire: the Luycks undertaking, or the Luycks trademark or Luycks's production facilities for sauces, although Mr de Rooij was granted an option for a limited period to purchase those production facilities. Considering the fact that Mr de Rooij effectively acquired the Remia undertaking and its manufacturing operation together with the ‘inactivity’ of the Luycks undertaking in the sauce sector, to which must be added the fact that Luycks was unable to sell its production facilities for sauces to Mr de Rooij, I think that the Commission has already made a substantial concession to the applicants; for it has accepted the principle that the purchaser must be put in a position to assume the place in the market previously occupied by the seller despite the fact that de Rooij has taken over only a part of the production facilities, leaving the other part with the seller, who is nevertheless prevented from using them for their existing purpose. For these reasons I take the view that the four-year period laid down by the defendant for the non-application of the prohibition of restrictive agreements laid down in Article 85 (1) of the EEC Treaty is reasonable. At all events I can see no legally compelling reason for extending the duration of such a non-application of Article 85 (1), for which there is no express provision in the EEC Treaty, in the case of prohibitions of competition which are connected with agreements for the sale of undertakings. My provisional conclusion is as follows: If it is accepted that it is possible for the general competition rules of the EEC Treaty not to be applied, for a limited period, to prohibitions of competition agreed in connection with the sale of an undertaking, Article 1 of the Commission's decision may be upheld because a four-year exception to the prohibition of restrictive agreements laid down in Article 85 of the EEC Treaty would be sufficient to permit the attainment of the lawful purposes of the transfer of the undertaking. If that possibility is not accepted the result is the same. In that case the non-competition clauses admittedly infringed Article 85 (1) from the outset, but the period prior to 1 October 1983 is not in issue in these proceedings because it lies outside the scope of the Commission decision. Only if the Court comes to the view that a prohibition of competition is required on grounds, as described above, inherent in the nature of agreements for the sale of undertakings and that it is necessary and permissible in this case for a period subsequent to 1 October 1983, need it adopt a position in regard to the question of principle which would then arise. In my view, for the reasons stated above, that is unnecessary because it seems to me that a four-year period was the most that it was possible to allow on the assumption that the non-competition clauses at issue in this case could be exempted from the prohibition of restrictive agreements for a limited period. If nevertheless the Court of Justice should take a different view, I would request it to inform me accordingly. In such a case it would seem to me that further inquiries would be necessary in order to ascertain whether such exceptions to the general competition rules are known to the legal systems of the Member States or at least those of a sufficient number of them, and thereby enable an analogous principle to be established as a principle of Community law.