Source: EURLEX
Language: en
Format: md

8 . 10 . 93 Official Journal of the European Communities No C 272 / 7

/

Notice pursuant to Article 19 ( 3 ) of Council Regulation No 17 concerning a request for a
negative clearance or an exemption pursuant to Article 85 ( 3 ) of the EEC Treaty ( Case No

/ IV / 34.653 — BP Chen icals / Enichem )

( 93 / C 272 / 05 )

1 . On 27 October 1992 BP Chemicals Limited ( BP
Chemicals ) and ECP-Enichem Polimeri srl ( Enichem )
concluded a research and development agreement in the
field of polyethylene .

The above agreement was preceded by a licence
agreement of 22 May 1992 between the same parties for
the manufacture in the European Communities and sale
worldwide of linear polyethylene .

An agreement for technical assistance between BP
Chemicals Technical Services Limited and Enichem as ­
sociated with the licence agreement was made on the
same date .

2 . After the Commission of the European
Communities was informed that the research and devel ­
opment agreement was being negotiated, on 15 March

1993 it received notification of this contract from BP

Chemicals .

3 . According to what was originally decided ( 22 May
1992 ) — ' General Understanding ' — all the above ­
mentioned agreements were to form part of an overall
' strategic alliance ' consisting of a joint venture in the
field of styrenics and further agreements in the poly ­
ethylene sector, as well as the licence agreements and the
research and development agreement .

4 . On 14 May 1993 the parties informed the
Commission that the agreements already made would
not form part of a broader strategic alliance and that, on
the contrary, cooperation between BP Chemicals and
Enichem would be limited to what was set out in the
clauses of the agreements already concluded .

5 . The notified research and development agreement
provides that each party is to undertake research and
development activities assigned to it by a steering
committee consisting of representatives of BP Chemicals
and Enichem and that, to this end, each party is to make
available all the appropriate resources in order to meet
the research objectives concerning gas phase polymeriz ­
ation and the production of LLdPE at very low density .
Each party is to be free to make use of the results of the
joint research for its own independent research,
production and sales . However, Enichem may license to
third parties only results concerning gas phase tech ­
nology, and BP Chemicals may license only results
concerning the so-called slurry process .

6 . The research and development agreement notified
initially fell within Article 85 ( 1 ) of the EEC Treaty since
neither party was in a position to exploit all the results of
the programme . In fact, the parties agreed upon the
methods for granting intellectual property rights to third
parties by sharing out the licence market ( the licences
relating to gas phase technology to be granted only by
Enichem and the licences relating to the slurry process to
be granted only by BP Chemicals ). Moreover, the
agreement did not qualify for block exemption under
Commission Regulation ( EEC ) No 418 / 85 ('), as
modified by Regulation ( EEC ) No 151 / 93 ( 2 ) : in fact,
the combined market share of Enichem and BP
Chemicals in the field of LdPE and LLdPE is certainly
greater than the 20 % threshold for competing manufac ­
turers, such as the parties in question, above which
# Regulation ( EEC ) No 418 / 85 does not apply .

7 . Furthermore, the agreement notified initially did
not qualify, considering the importance of the
contracting parties, for individual exemption under
Article 85 ( 3 ) because it imposed on the relevant under ­
takings some restrictions on competition not indis ­
pensable to the attainment of the objectives listed in
Article 85 ( 3 ). In particular, it provided that neither party
could invest in joint research and development activities
resources above the levels agreed by the steering
committee made up of representatives of BP Chemicals
and Enichem . Indeed such an obligation would have
eliminated the right of each party to conduct research
and development within the agreement but with differing
and varied efforts and contributions .

The parties subsequently modified the original agreement
and notified the following alteration :

each party was given the right to make additional
investments at its own cost and expense and without
requiring the consent of the steering committee or
the other party .

8 . That alteration must also be considered in the light
of the no less important changes made to the licence

O QJ No L 53, 22 . 2 . 1985, p . 5 .
O OT No L 21, 21 . 1 . 1993, p . 8 .

No C 272 / 8 Official Journal of the European Communities 8 . 10 . 93

agreement which is closely linked with the research and
development agreement .

The original text of the licence agreement provided in
particular that the licensee had to communicate to the
licensor, or in any case allow the licensor access to,
confidential data such as the quantity and price of poly ­
ethylene sold by Enichem .

Once the Commission informed the parties that,
although patent rights might be calculated on the basis of
net value of sales, total sales ( wherever made ) ought to
be checked only by an independent auditor and not by ­
the competing licensor, BP Chemicals and Enichem
subsequently modified the text of the agreement .

The Commission also takes account of the fact that the
two related agreements ( licence and joint research and
development ) are not part of a broader strategic alliance
and that the joint research will enable each party to
concentrate its efforts in the fields where its research
programme is mainly developed, thus being able to attain
results that could not have been attained through

separate activities, thus achieving a research programme
that exploits the complementary strengths of the parties .
Furthermore, considering that progress made via
common research will enable the production of different
types of polyethylene at lower prices for clients and
consequently also for consumers, and finally that the
cooperation between the parties does not afford such
undertakings the possibility of eliminating competition in
respect of a substantial part of the products in question,
the Commission intends to adopt a favourable position in
relation to the new version of the agreements notified on

19 July 1993 .

9 . However, before adopting such a position, the
Commission invites interested third parties to send their
observations within one month from the date of publi ­
cation of this Notice, quoting the reference TV / 34.653
— BP Chemicals / Enichem ', to :

Commission of the European Communities,
# Directorate General for Competition ( DG IV / C-2 ),

200, rue de la Loi,
B-1049 Brussels .

Commission communication pursuant to Article 9 ( 1 ) of Council Regulation ( EEC ) No 3832 / 90
of 20 December 1990 applying generalized tariff preferences for 1991 in respect of textile
products originating in developing countries, extended for 1993 by Regulation ( EEC )
No 3917 / 92

( 93 / C 272 / 06 )

Pursuant to Article 9 ( 1 ) of Council Regulation ( EEC ) No 3832 / 90 ('), extended for 1993 by
Regulation ( EEC ) No 3917 / 92 ( 2 ), the Commission gives notice that the following fixed
duty-free amounts have been exhausted :

Order No Category Origin Fixed duty-free amount Date of exhaustion

48 tonnes 13 . 9 . 1993

40.0080

33 South Korea

f

I

Imports beyond these amounts are liable to payment of the normal duties of the Common
Customs Tariff .

C ) OJ No L 370, 31 . 12 . 1990, p . 39 .
O OJ No L 396, 31 . 12 . 1992, p . 1 .