Keywords

Summary



Keywords

1 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - UNDERTAKING - CHANGE IN LEGAL FORM AND NAME - LIABILITY OF THE NEW UNDERTAKING FOR THE ANTI-COMPETITIVE BEHAVIOUR OF ITS PREDECESSOR - CONDITIONS

( EEC TREATY , ART . 85 ( 1 ))

2 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - CONCERTED PRACTICE - CONCERTED ACTION NOT PROVEN

( EEC TREATY , ART . 85 ( 1 ))

3 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - AGREEMENT HAVING AS ITS OBJECT THE RESTRICTION OF COMPETITION - CRITERIA FOR ASSESSMENT

( EEC TREATY , ART . 85 ( 1 ))

4 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - EXPORT CLAUSES IN A CONTRACT OF SALE - OBLIGATION TO RE-SELL IN A SPECIFIC NON-MEMBER COUNTRY - PROHIBITION - CONDITIONS

( EEC TREATY , ART . 85 ( 1 ))

5 . COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - RECIPROCAL ASSISTANCE CONTRACT BETWEEN PRODUCER UNDERTAKINGS - PROHIBITION - CONDITIONS

( EEC TREATY , ART . 85 ( 1 ))

Summary

1 . FOR THE PURPOSES OF ARTICLE 85 OF THE TREATY , A CHANGE IN THE LEGAL FORM AND NAME OF AN UNDERTAKING DOES NOT CREATE A NEW UNDERTAKING FREE OF LIABILITY FOR THE ANTI-COMPETITIVE BEHAVIOUR OF ITS PREDECESSOR , WHEN , FROM AN ECONOMIC POINT OF VIEW , THE TWO ARE IDENTICAL .

2.THE COMMISSION MUST PRODUCE SUFFICIENTLY PRECISE AND COHERENT PROOF TO JUSTIFY THE VIEW THAT THE PARALLEL BEHAVIOUR OF THE TWO UNDERTAKINGS WAS THE RESULT OF CONCERTED ACTION BY THEM .

THAT REQUIREMENT IS NOT SATISFIED WHERE THE UNDERTAKINGS CONCERNED ARE ABLE TO PROVE THAT FACTS WHICH THE COMMISSION CONSIDERED COULD NOT BE EXPLAINED OTHER THAN BY A CONCERTED PRACTICE CAN BE SATISFACTORILY EXPLAINED IN A WAY WHICH DOES NOT INVOLVE SUCH A PRACTICE .

3.IN ORDER TO DETERMINE WHETHER AN AGREEMENT HAS AS ITS OBJECT THE RESTRICTION OF COMPETITION , IT IS NOT NECESSARY TO INQUIRE WHICH OF THE TWO CONTRACTING PARTIES TOOK THE INITIATIVE IN INSERTING ANY PARTICULAR CLAUSE OR TO VERIFY THAT THE PARTIES HAD A COMMON INTENT AT THE TIME WHEN THE AGREEMENT WAS CONCLUDED . IT IS RATHER A QUESTION OF EXAMINING THE AIMS PURSUED BY THE AGREEMENT AS SUCH , IN THE LIGHT OF THE ECONOMIC CONTEXT IN WHICH THE AGREEMENT IS TO BE APPLIED .

4.EXPORT CLAUSES INSERTED IN A CONTRACT OF SALE WHICH OBLIGE THE DEALER TO EXPORT THE GOODS IN QUESTION TO A SPECIFIC NON-MEMBER COUNTRY CONSTITUTE AN INFRINGEMENT OF ARTICLE 85 OF THE TREATY WHEN THEY ARE ESSENTIALLY DESIGNED TO PREVENT THE RE-EXPORT OF THE GOODS TO THE COUNTRY OF PRODUCTION SO AS TO MAINTAIN A SYSTEM OF DUAL PRICES AND RESTRICT COMPETITION WITHIN THE COMMON MARKET .

5.HOWEVER A RECIPROCAL ASSISTANCE CONTRACT BETWEEN PRODUCER UNDERTAKINGS MIGHT GENERALLY BE EVALUATED IN RELATION TO THE PROHIBITIONS CONTAINED IN ARTICLE 85 OF THE TREATY , SUCH A CONTRACT IS PROHIBITED IF IT APPEARS THAT THE CONDITIONS FOR ITS APPLICATION ARE SO WIDE AND SO VAGUE THAT THEY MAY BE USED TO RESTRICT COMPETITION .

THAT IS THE CASE , FOR EXAMPLE , WHERE THE UNDERTAKINGS TO PROVIDE MUTUAL ASSISTANCE DO NOT JUST RELATE TO CASES OF FORCE MAJEURE AND COMPARABLE SITUATIONS , BUT TO ALL CASES OF ' ' SERIOUS DISRUPTION ' ' , OF WHATEVER KIND AND FROM WHATEVER SOURCE , PARTICULARLY IF THE CONTRACT IS CONCLUDED FOR AN INDETERMINATE PERIOD AND IF LARGE QUANTITIES OF PRODUCTS ARE INVOLVED .