1 ) OF THE TREATY ENABLES AN UNDERTAKING , WHICH WOULD NOT BE VIABLE IN CONDITIONS OF FREE COMPETITION , TO SURVIVE IS NOT ONE OF THE CASES IN WHICH ARTICLE 85 ( 3 ) PROVIDES FOR AN EXEMPTION . FINALLY IT POINTS OUT THAT THE CONTINUANCE OF THE NON-COMPETITION CLAUSE AT ISSUE BEYOND THE PERMISSIBLE PERIOD OF FOUR YEARS IMPOSES ON THE UNDERTAKINGS CONCERNED RESTRICTIONS ON COMPETITION WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THE OBJECTIVES OF THE TRANSFER AGREEMENT .
47 IT IS CLEAR FROM ALL THE DOCUMENTS BEFORE THE COURT AND FROM THE ORAL ARGUMENT PRESENTED TO IT THAT THE APPLICANTS HAVE NOT SUCCEEDED IN ESTABLISHING THAT THE CONTINUANCE OF THE NON-COMPETITION CLAUSE BEYOND A PERIOD OF FOUR YEARS WAS OF SUCH A NATURE AS TO CONTRIBUTE TO AN IMPROVEMENT IN THE PRODUCTION OR DISTRIBUTION OF THE PRODUCTS CONCERNED OR TO THE PROMOTION OF TECHNICAL OR ECONOMIC PROGRESS , AND IT IS EQUALLY CLEAR THAT THEY HAVE NOT PROVIDED EVIDENCE ENABLING IT TO BE ESTABLISHED THAT THE CONTINUANCE OF THAT NON-COMPETITION CLAUSE DID NOT IMPOSE ON THE UNDERTAKINGS CONCERNED RESTRICTIONS ON COMPETITION GOING BEYOND WHAT WAS INDISPENSABLE TO THE ATTAINMENT OF THE OBJECTIVES OF THE TRANSFER AGREEMENT .
48 IT HAS THEREFORE NOT BEEN ESTABLISHED , HAVING REGARD TO THE DISCRETION WHICH THE COMMISSION ENJOYS IN THIS MATTER , THAT THE CONTESTED DECISION IS BASED ON AN INACCURATE STATEMENT OF REASONS OR AN ERRONEOUS APPRAISAL .
THE CONCLUSIONS IN THE APPLICATION CLAIMING THAT ARTICLE 5 OF THE CONTESTED DECISION SHOULD BE DECLARED VOID IN SO FAR AS IT NAMES MR DE ROOIJ AS AN ADDRESSEE OF THE DECISION
49 THE APPLICANTS CONTEND THAT FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 85 OF THE TREATY OR OF REGULATION NO 17 OF 6 FEBRUARY 1962 , THE ONLY RELEVANT UNDERTAKING IS REMIA AND NOT MR DE ROOIJ HIMSELF , EITHER IN HIS PRIVATE CAPACITY OR IN HIS CAPACITY AS A SIGNATORY TO THE AGREEMENT IN COMPLIANCE WITH A PURELY FORMAL REQUIREMENT OF NETHERLANDS LAW .
50 THAT ARGUMENT CANNOT BE ACCEPTED . AS THE COMMISSION RIGHTLY POINTS OUT , MR DE ROOIJ WAS A CONTRACTING PARTY TO THE SAUCE AGREEMENT , WHICH GRANTS HIM , PARTICULARLY IN CLAUSES 5 AND 7 , RIGHTS PECULIAR TO HIM AND DISTINCT FROM THOSE OF REMIA . FURTHERMORE , IN THE NOTIFICATION ADDRESSED TO THE COMMISSION ON 1 JULY 1981 WITH A VIEW TO OBTAINING AN EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY , MR DE ROOIJ IS REFERRED TO BY THE APPLICANTS THEMSELVES AS AN UNDERTAKING WHICH IS A PARTY TO THE AGREEMENT ON THE SAME FOOTING AS NUTRICIA . IT MUST THEREFORE BE INFERRED THAT MR DE ROOIJ PLAYED A PART IN HIS OWN RIGHT BOTH IN THE CONCLUSION OF THE TRANSFER AGREEMENT AND AS A SIGNATORY OF THE NON-COMPETITION CLAUSE AND THAT THAT JUSTIFIED HIS BEING MADE AN ADDRESSEE OF THE CONTESTED DECISION . THE CONCLUSIONS MENTIONED ABOVE MUST THEREFORE BE REJECTED .
51 IT