Keywords

Summary



Keywords

1 . COMPETITION - AGREEMENTS - INDUSTRIAL AND COMMERCIAL PROPERTY RIGHTS - EXERCISE OF THOSE RIGHTS - CONDITIONS - GRANT OF EXCLUSIVE LICENCE - EXCLUSIVE DISTRIBUTION AGREEMENT - AGREEMENTS HAVING THE COMBINED EFFECT OF GRANTING ABSOLUTE TERRITORIAL PROTECTION - PROHIBITION

( EEC TREATY , ART . 85 ( 1 ))

2 . COMPETITION - COMMUNITY RULES - INDUSTRIAL AND COMMERCIAL PROPERTY RIGHTS - PLANT BREEDERS ' RIGHTS - SUBJECT TO THE SAME SYSTEM AS OTHER PROPERTY RIGHTS - SPECIFIC NATURE OF THE PRODUCTS COVERED BY PLANT BREEDERS ' RIGHTS - NEED TO TAKE INTO CONSIDERATION

3 . COMPETITION - AGREEMENTS - INDUSTRIAL AND COMMERCIAL PROPERTY RIGHTS - PLANT BREEDERS ' RIGHTS - OPEN EXCLUSIVE LICENCE - CONCEPT - LAWFULNESS - CONDITIONS

( EEC TREATY , ART . 85 ( 1 ))

4 . COMPETITION - AGREEMENTS - EXCLUSIVE LICENCE CONFERRING ABSOLUTE TERRITORIAL PROTECTION - CONCEPT - EFFECTS - ARTIFICIAL MAINTENANCE OF SEPARATE NATIONAL MARKETS - PROHIBITION

( EEC TREATY , ART . 85 ( 1 ))

5 . COMPETITION - AGREEMENTS - PROHIBITION - EXEMPTION - EXCLUSIVE LICENCE IN RESPECT OF PLANT BREEDERS ' RIGHTS CONFERRING ABSOLUTE TERRITORIAL PROTECTION - NOT INDISPENSABLE FOR THE IMPROVEMENT OF PRODUCTION - REFUSAL OF EXEMPTION JUSTIFIED

( EEC TREATY , ART . 85 ( 3 ))

Summary

1 . AN INDUSTRIAL OR COMMERCIAL PROPERTY RIGHT , AS A LEGAL ENTITY , DOES NOT POSSESS THOSE ELEMENTS OF CONTRACT OR CONCERTED PRACTICE REFERRED TO IN ARTICLE 85 ( 1 ) OF THE EEC TREATY , BUT THE EXERCISE OF THAT RIGHT MIGHT FALL WITHIN THE AMBIT OF THE PROHIBITIONS CONTAINED IN THE TREATY IF IT WERE TO MANIFEST ITSELF AS THE SUBJECT , THE MEANS OR THE CONSEQUENCES OF AN AGREEMENT . SUCH IS THE CASE WHERE AN AGREEMENT GRANTING EXCLUSIVE RIGHTS TO UTILIZE AN INDUSTRIAL OR COMMERCIAL PROPERTY RIGHT IN A CERTAIN TERRITORY , IN CONJUNCTION WITH AN AGREEMENT APPOINTING THE LICENSEE SOLE DISTRIBUTOR FOR THAT TERRITORY , HAS THE EFFECT OF ENSURING ABSOLUTE TERRITORIAL PROTECTION FOR THE LICENSEE BY PREVENTING PARALLEL IMPORTS .

2 . THE CHARACTERISTICS OF PLANT BREEDERS ' RIGHTS , STEMMING FROM THE PARTICULAR NATURE OF THE PROCEDURE FOR THE REPRODUCTION OF SEEDS , ARE NOT OF SO SPECIAL A NATURE AS TO REQUIRE , IN RELATION TO THE COMPETITION RULES , A DIFFERENT TREATMENT FROM OTHER COMMERCIAL OR INDUSTRIAL PROPERTY RIGHTS . THAT CONCLUSION DOES NOT AFFECT THE NEED TO TAKE INTO CONSIDERATION , FOR THE PURPOSES OF THE RULES ON COMPETITION , THE SPECIFIC NATURE OF THE PRODUCTS WHICH FORM THE SUBJECT-MATTER OF BREEDERS ' RIGHTS .

3 . IN SO FAR AS THE EXCLUSIVE LICENCE GRANTED IS IN THE NATURE OF AN OPEN LICENCE , THAT IS TO SAY THAT IT RELATES SOLELY TO THE CONTRACTUAL RELATIONSHIP BETWEEN THE OWNER OF THE RIGHT AND THE LICENSEE , WHEREBY THE OWNER MERELY UNDERTAKES NOT TO GRANT OTHER LICENCES IN RESPECT OF THE SAME TERRITORY AND NOT TO COMPETE HIMSELF WITH THE LICENSEE ON THAT TERRITORY , THE GRANT OF AN EXCLUSIVE LICENCE OF PLANT BREEDERS ' RIGHTS IN RESPECT OF CERTAIN VARIETIES OF SEEDS NEWLY DEVELOPED IN A MEMBER STATE IS NOT IN ITSELF INCOMPATIBLE WITH ARTICLE 85 ( 1 ) OF THE EEC TREATY , IN VIEW OF THE SPECIFIC NATURE OF THE PRODUCTS IN QUESTION , IF IT PROMOTES THE DISSEMINATION OF A NEW TECHNOLOGY AND COMPETITION IN THE COMMUNITY BETWEEN THE NEW PRODUCT AND SIMILAR EXISTING PRODUCTS .

4 . AN EXCLUSIVE LICENCE OR ASSIGNMENT WITH ABSOLUTE TERRITORIAL PROTECTION , UNDER WHICH THE PARTIES TO THE CONTRACT PROPOSE , AS REGARDS THE PRODUCTS AND THE TERRITORY IN QUESTION , TO ELIMINATE ALL COMPETITION FROM THIRD PARTIES , SUCH AS PARALLEL IMPORTERS OR LICENSEES FOR OTHER TERRITORIES , RESULTS IN THE ARTIFICIAL MAINTENANCE OF SEPARATE NATIONAL MARKETS AND IS THEREFORE CONTRARY TO THE TREATY .

5 . THE ABSOLUTE TERRITORIAL PROTECTION CONFERRED ON THE LICENSEE OF A PLANT BREEDER ' S RIGHTS IN RESPECT OF CERTAIN VARIETIES OF SEEDS INTENDED TO BE USED BY A LARGE NUMBER OF FARMERS FOR THE PRODUCTION OF AN IMPORTANT PRODUCT FOR HUMAN AND ANIMAL FOODSTUFFS MANIFESTLY GOES BEYOND WHAT IS INDISPENSABLE FOR THE IMPROVEMENT OF PRODUCTION OR DISTRIBUTION OR THE PROMOTION OF TECHNICAL PROGRESS AND CONSTITUTES A SUFFICIENT REASON FOR REFUSING TO GRANT AN EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY .