Keywords

Summary



Keywords

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1. Action for annulment - Measures against which actions may be brought - Definition - Measures producing binding legal effects - Administrative procedure under the competition rules - Decision withdrawing exemption from a fine from an undertaking which had notified an agreement

(EEC Treaty, Art. 173; Council Regulation No 17, Art. 15(6))

2. Competition - Administrative procedure - Decision withdrawing exemption from a fine from an undertaking which had notified an agreement - Obligation to consult the Advisory Committee on restrictive practices and dominant positions - None

(EEC Treaty, Art. 85; Council Regulation No 17, Art. 10(1) and (3) and Art. 15(6))

3. Competition - Administrative procedure - Decision withdrawing exemption from a fine from an undertaking which had notified an agreement - Observance of the rights of the defence

(Council Regulation No 17, Arts 15(6) and 19(1))

4. Competition - Administrative procedure - Decision withdrawing exemption from a fine from an undertaking which had notified an agreement - Precondition - Manifest seriousness of the infringement of the competition rules

(Council Regulation No 17, Art. 15(6))

5. Competition - Agreements, decisions and concerted practices - Selective distribution system - Whether permissible - Conditions - Cosmetics - Distribution only through dispensing chemists - Criteria for access to the distribution system both quantitative and disproportionate in relation to the qualitative requirements - Prohibited

(EEC Treaty, Art. 85(1))

Summary

1. A decision adopted pursuant to Article 15(6) of Regulation No 17 withdrawing exemption from a fine from an undertaking that has notified an agreement is an act against which an action for annulment may be brought under Article 173 of the Treaty provided that the Commission thereby adopts a measure which it has legal effects as regards the interests of the undertaking concerned and is binding on it.

2. It is apparent from the combined provisions of Article 10(1) and (3) of Regulation No 17 that the opinion of the Advisory Committee on restrictive practices and dominant positions is required only before the adoption of the Commission' s final decision in which it finds an infringement of Article 85 of the Treaty or, on the other hand, issues a negative clearance or, on the basis of Article 85(3) of the Treaty, declares Article 85(1) inapplicable to the agreement notified to it. The Commission is thus not required to consult that committee where it proposes to adopt a decision applying Article 15(6) of Regulation No 17 withdrawing exemption from a fine from an undertaking that has notified an agreement by reason of the fact that, after a preliminary examination of the agreement, it considers that the conditions laid down by Article 85(1) of the Treaty are fulfilled and that the grant of an exemption under Article 85(3) is not justified.

3. In view of the effects of communications by which the Commission, pursuant to Article 15(6) of Regulation No 17, informs undertakings which have notified an agreement to it that their exemption from fines has been withdrawn, such communications are properly made only if, pursuant to Article 19(1) of Regulation No 17 and in accordance with the Commission' s practice, those undertakings have been given due opportunity to express their views on the objections raised against them by the Commission. If the facts and documents relied on by the Commission are known to the undertaking, which previously notified them to the Commission, observance of the rights of the defence requires that, before the communication provided for in Article 15(6) of Regulation No 17 is made, the Commission should inform the undertaking of the conclusions which it intends drawing from the notification made by the undertaking and the reasoning on which those conclusions are based.

4. A decision may be adopted by the Commission under Article 15(6) of Regulation No 17 where the infringement of Article 85(1) found during its preliminary examination is manifestly serious.

That applies in particular where the agreement notified has already been the subject of a complaint to the Commission and where the undertaking concerned was in a position to know, by virtue both of Commission practice and of the decisions of the courts of the Member States, that the agreement notified contravened the Community competition rules.

5. A selective or exclusive distribution system may constitute an aspect of competition which is in conformity with Article 85(1) of the Treaty if it is established that the characteristics of the products in question necessitate a selective distribution system in order to preserve their quality and ensure their proper use and provided that resellers are chosen on the basis of objective qualitative criteria relating to the professional 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.

A distribution system for cosmetics confined to dispensing chemists does not fulfil those conditions. Firstly, the criterion for admission to the distribution network is quantitative in nature, access to the profession of dispensing chemist being subject to a quantitative ceiling in most of the Member States concerned, so that it is immaterial whether the limitation of the number of sales outlets derives from existing rules or merely the will of the manufacturer, provided that the latter is in some way associated with it. Secondly, the requirement of the status of dispensing chemist is entirely unnecessary for the distribution of cosmetics and is therefore disproportionate: such products cannot be assimilated to medicinal preparations and are interchangeable with equivalent products distributed through other channels.