BECAUSE THE NUMBER OF DEALERS WHO WOULD PARTICIPATE WITHOUT THE SUPPORT OF THEIR MANUFACTURER OR CONCESSIONAIRE HAD BEEN SO REDUCED THAT THERE WAS NO LONGER SCOPE FOR HOLDING THE EXHIBITION .
( 10 ) HAVING EXAMINED THE COMPLAINT THE COMMISSION REQUESTED THE SMM AND T TO CHANGE THE EXHIBITION AGREEMENT . THE SMM AND T HAS COMPLIED WITH THE COMMISSION'S REQUEST AND HAS AMENDED THE EXHIBITION AGREEMENT SUBSTANTIALLY . THE MAIN POINTS OF THE NEW MODIFIED EXHIBITION AGREEMENT ARE AS FOLLOWS :
- IN THE YEARS WHERE THE SMM AND T ORGANIZES INTERNATIONAL MOTOR VEHICLE EXHIBITIONS SIGNATORY MEMBERS OF THE SOCIETY MAY PARTICIPATE DIRECTLY OR INDIRECTLY IN THE EXHIBITION OF MOTOR PRODUCTS IN THE UNITED KINGDOM AT EXHIBITIONS NOT ORGANIZED BY THE SMM AND T ONLY TO THE EXTENT PERMITTED BY THE RELEVANT SECTIONS OF THE SOCIETY WHICH SHALL PERMIT SUCH PARTICIPATION IN CIRCUMSTANCES AND TO A DEGREE WHICH IS NOT LIKELY TO PREJUDICE THE IMPACT OF THE SMM AND T'S OWN INTERNATIONAL EXHIBITIONS ORGANIZED IN THOSE YEARS ,
- IN THE YEARS WHERE THERE IS NO INTERNATIONAL MOTOR VEHICLE EXHIBITION ORGANIZED BY THE SMM AND T SIGNATORY MEMBERS ARE FREE TO PARTICIPATE DIRECTLY OR INDIRECTLY WITHOUT RESTRICTION IN EXHIBITIONS NOT ORGANIZED BY THE SOCIETY ,
- SIGNATORIES TO THE EXHIBITION AGREEMENT HAVE PREFERENCE OVER OTHERS IN THE ALLOCATION OF SPACE AT ANY INTERNATIONAL EXHIBITION OF MOTOR VEHICLES ORGANIZED BY THE SMM AND T AND ALSO ENJOY PREFERENTIAL CHARGES ( ABOUT 25 % LESS ) FOR SPACE AT SUCH EXHIBITIONS ; THE BENEFITS OF THIS CLAUSE SHALL CEASE TO APPLY ON ANY BREACH OF THE AGREEMENT BY THE MEMBER ,
- ANY QUESTION OR DISPUTE ARISING AS TO THE MEANING AND EFFECT OF THE EXHIBITION AGREEMENT SHALL , AT THE REQUEST OF ANY PARTY AFFECTED BY THE SAID QUESTION OR DISPUTE , BE SUBJECT TO APPEAL TO AN INDEPENDENT ARBITRATOR .
( 11 ) FOLLOWING THE AMENDMENTS MADE BY THE SMM AND T TO THE EXHIBITION AGREEMENT EARLS COURT WITHDREW ITS COMPLAINT .
( 12 ) WHEN AMENDING THE EXHIBITION AGREEMENT THE SMM AND T ORIGINALLY PROPOSED TO INSERT A RESTRICTION ON MEMBER SIGNATORIES' PARTICIPATION AT EXHIBITIONS OF POTENTIAL NATIONAL IMPORTANCE IN THE YEARS WHEN THE SMM AND T DOES NOT ORGANIZE INTERNATIONAL MOTOR EXHIBITIONS . AFTER DISCUSSIONS WITH THE COMMISSION'S DEPARTMENTS THIS CLAUSE WAS ABANDONED .
( 13 ) THE COMMISSION HAS RECEIVED NO OBSERVATIONS FROM THIRD PARTIES SUBSEQUENT TO THE PUBLICATION MADE PURSUANT TO ARTICLE 19 ( 3 ) OF REGULATION NO 17 .
II . LEGAL ASSESSMENT
A . APPLICABILITY OF ARTICLE 85 ( 1 )
ARTICLE 85 ( 1 ) OF THE TREATY PROHIBITS AS INCOMPATIBLE WITH THE COMMON MARKET ALL AGREEMENTS BETWEEN UNDERTAKINGS , DECISIONS OF ASSOCIATIONS OF UNDERTAKINGS AND CONCERTED PRACTICES WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES AND WHICH HAVE AS THEIR OBJECT OR EFFECT THE PREVENTION , RESTRICTION OR DISTORTION OF COMPETITION WITHIN THE COMMON MARKET .
( 14 ) THE EXHIBITION AGREEMENT IS AN AGREEMENT BETWEEN UNDERTAKINGS ON THE ONE PART