CELEX: 31975D0649
Language: en
Date: 1975-10-23 00:00:00
Title: 75/649/EEC: Commission Decision of 23 October 1975 relating to a proceeding under Article 85 of the EEC Treaty (IV/223 - Transocean Marine Paint Association)

No L 286/24                              Official Journal of the European Communities                                5 . 11 . 75
                                                    COMMISSION DECISION
                                                         of 23 October 1975
                relating to a proceeding under Article 85 of the EEC Treaty (IV/223 — Trans­
                                                  ocean Marine Paint Association)
                                                  (Only the English text is authentic)
                                                             (75/649/EEC)
THE COMMISSION OF THE EUROPEAN                                                  and any other company or firm in the paints
COMMUNITIES,                                                                    sector or any financial participation by a
                                                                                member of the Association in such outside
Having regard to the Treaty establishing the European                           companies or firms or vice versa including all
Economic Community, and in particular Article 85                                changes in such links or participations already
thereof ;                                                                       in existence .
Having regard to Regulation No 17 (!) of 6 February
1 962, and in particular Article 8 thereof ;                           2. A report is to be submitted by the Association
Having regard to the Commission Decision of 21                             annually to the Commission on the activities of the
December 1973 (2) granting exemption to the Trans­                         Association and in particular on improvements
ocean Marine Paint Association until 31                December            achieved in the production and marketing of
1978 in accordance with Article 85 (3);                                    marine paint products.
Having regard to the Judgment of the European
Court of Justice of 23 October 1974 (3) which                          The European Court of Justice on 23 October 1974
annulled Article 3 (1) (d) of the Commission Decision                  annulled Article 3 ( 1 ) (d) of the Commission's Deci­
mentioned above ;                                                      sion in this case for breach of procedural require­
                                                                       ments and referred the case back to the Commission
Having considered the representations of the Associa­                  (Case 17/74).
tion in accordance with Article 19(1 ) of Regulation
No 17 and Regulation No 99/63/EEC (4) ;                                The Court nevertheless confirmed that the Commis­
 Having regard to the Opinion of the Advisory                          sion must be in a position at any time to verify that
Committee on Restrictive Practices and Dominant                        the conditions justifying the exemption are still
Positions obtained pursuant to Article 10 of Regula­                   present.
tion No 17 on 15 July 1975 ;
WHEREAS :
                                                                       In granting its exemption the Commission considered
                                                                        inter alia that the members of the Association are
 By the Decision of 21 December 1973 the Commis­                       medium-sized undertakings faced with genuine
 sion granted exemption to the Transocean Marine                       competition from other larger marine paint producers,
 Paint Association until 31 December 1978 in accor­                    that the contractual commitments of the members
 dance with Article 85 (3). Article 3 of the Decision                  relating to the Association are limited to indispens­
 provided that the Decision should be subject to the                   able restrictions and that the market share of the Asso­
 following obligations :                                               ciation members does not present any opportunity to
 1 . That the Commission shall be informed without
                                                                       restrict competition significantly in the marine paint
                                                                       sector.
     delay of the following matters :
     (a) any amendment or addition to the Agreement ;
                                                                        In accordance with the provisions of Article 8 ( 1 ) of
     (b) any decision taken by the Board of Directors or                Regulation No 17, the Commission must be regularly
         the result of any arbitration held pursuant to                informed of any links between Association members
         the restrictive provisions of the Agreement, in               and between an Association member and any other
         particular Articles 3 to 9 thereof ;                           paint enterprise where such other paint enterprise
     (c) any change in the composition of member­                       does business within the common market in order to
         ship ;                                                         be able to verify whether, having regard to Article
     (d) any links by way of common directors or                        8 (3) (a) of Regulation No 17, there has been a change
         managers between a member of the Association                   in any of the facts which were basic to the making of
                                                                        the Decision .
 (>) OJ No   13, 21 . 2. 1962, p. 204/62.
 (2) OJ No   L 19, 23 . 1 . 1974, p. 18 .
 (3) Reports of Cases, 1974 to 1976, p. 1063 .                          In the view of the Commission the duty to provide
 (4) OJ No   127, 20 . 8 . 1963 , p . 2268 / 63 .                       information concerning links between Association
 ---pagebreak--- 5. 11 . 75                         Official Journal of the European Communities                           No L 286/25
members and outside enterprises cannot be limited to          HAS ADOPTED THIS DECISION :
the marine paint sector alone, but rather must extend
to links with enterprises in the paint sector as a whole.                              Article 1
All Association members manufacture not only
special marine paint products but also other paints. At      Article 3 (1 ) (d) of Commission Decision No
least 20 % of all the marine paints can be used in            74/ 16/EEC of 21 December 1973 is replaced by the
other paint fields. Moreover certain parts of a ship (e.g.    following :
the interior) can be treated with other paints. A paint
manufacturer is capable of extending his production               '(d) Any link and any changes in such links,
in a relatively short time to the marine paint sector.                 present or future, constituted by means of a
Links between an Association member and an under­                      financial participation amounting to 25 % or
taking in the general paint sector are therefore capable               more of the share capital by way of common
of having an influence on the competition situation in                 directors or managers
the marine paint sector.                                               (aa) between members of the Association, or
On the other hand, the obligation is to be limited to                  (bb) a member of the Association and another
links with such enterprises as carry on business within                     enterprise in the paint sector, provided
the Community in the paint sector, that is to say                           that such non-member carries on business
those which do business in one or several Member                            directly or indirectly within the Commu­
States, directly or through subsidiary undertakings or                      nity in the paint sector, that is to say
by means of a joint venture.                                                undertakes   business   in  one   or more
                                                                            Member States directly or through a
A link shall be regarded as existing between two enter­                     subsidiary undertaking or by means of a
prises where there is a 25 % , financial participation or                   joint venture.'
where there are interlocking directorships or manage­
ments between one undertaking and another, irrespec­
tive  of whether the     Association   member     has  an                              Article 2
interest in the other undertaking or vice versa.              This Decision is addressed to the members of the
Changes in such links must also be notified.
                                                              Transocean Marine Paint Association through the
The duty of providing the information specified is            intermediary of its Secretary-General, Mr F. Th.
imposed on each existing Association member, in               Regnault, Delftse Plein 37, Rotterdam, the Nether­
whose favour the exemption was granted, and also on           lands .
any future members who may subsequently benefit
from it by joining the group. The Commission will
continue to accept notifications made by the Central          Done at Brussels, 23 October 1975.
Office on behalf of individual members. However,
such notifications must be complete and the Commis­
                                                                                          For the Commission
sion will not accept the failure of the Central Office
to make such complete notification due to lack of                                           A. BORSCHETTE
information as exonerating the individual firms from
the obligation hereinafter imposed,                                                   Member of the Commission