CELEX: 31992D0521
Language: en
Date: 1992-10-27 00:00:00
Title: 92/521/EEC: Commission Decision of 27 October 1992 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.384 and IV/33.378 - Distribution of package tours during the 1990 World Cup) (Only the French and Italian texts are authentic)

Avis juridique important

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31992D0521

92/521/EEC: Commission Decision of 27 October 1992 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.384 and IV/33.378 - Distribution of package tours during the 1990 World Cup) (Only the French and Italian texts are authentic)  

Official Journal L 326 , 12/11/1992 P. 0031 - 0042

COMMISSION DECISIONof  27 October 1992 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.384 and  IV/33.378 - Distribution of package tours during the 1990 World Cup) (Only the French and Italian  texts are authentic) (92/521/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing  Articles 85 and 86 of the Treaty  (1), as last amended by the Act of Accession of Spain and  Portugal, and in particular Article 3 thereof, Having regard to the application made by Pauwels Travel BVBA on 28 November 1989, in accordance  with Article 3 of Regulation No 17, for a finding that Article 85 had been infringed, Having regard to the Commission's decision of 22 January 1991 to initiate a proceeding in this  case, Having given the undertakings concerned the opportunity to make known their views on the objections  raised by the Commission, pursuant to Article 19 (1) of Regulation No 17 and Commission Regulation  No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of Council  Regulation No 17  (2), After consulting the Advisory Committee on Restrictive Practices and Dominant positions, Whereas: I.  THE FACTS A.  Subject of the Decision (1)  On 28 November 1989, the Commission received a  complaint from the travel agency Pauwels Travel BVBA ('Pauwels Travel`) against: -  FIFA Local Organizing Committee Italia `90, -  90 Tour Italia SpA, -  NV CIT Belgique. (2)  The complaint, based on the provisions of Article 3 of Regulation No 17, related to the ticket  distribution system applied during the FIFA World Cup held in Italy in 1990. (3)  Pauwels Travel wanted to put together and sell in Belgium World Cup package tours comprising  transport, accommodation and entrance tickets to the stadia in which the various matches were to be  played. However, it found that the ticket distribution system that had been decided on did not  allow travel agencies to acquire stadium entrance tickets for the purpose of putting together  package tours. (4)  The attempts made by Pauwels Travel to sell such package tours by procuring entrance tickets  through parallel channels resulted in an action to cease and desist being brought before the  Belgian national courts by the travel agency authorized by the World Cup organizers to sell package  tours in Belgium. (5)  This Decision does not relate to the whole of the ticket distribution system, but only to the  contracts through which the World Cup organizers conferred on the company 90 Tour Italia world  exclusive rights for the supply of stadium entrance tickets for the purpose of putting together  package tours. (6)  The market on which the effects of the contracts must be assessed is thus that for the sale of  package tours to the World Cup held in Italy. In accordance with the case law of the Court of Justice, in particular in Case 23/67, Brasserie de  Haecht v. Wilkin (1), however, the whole of the distribution system must be examined and the  contracts must be assessed in the context within which they operated. B.  General organization of the World Cup (7)  On 5 August 1983, the International Federation of  Association Football (Fédération internationale de football association - FIFA) drew up the  specifications and conditions for the federation organizing the 1990 World Cup. The specifications and conditions, signed by the General Secretary of FIFA, state that the World  Cup is a FIFA competition and that FIFA is to appoint one of the national associations affiliated  to FIFA as the organizer (executive agent) of the World Cup. (8)  Under Article 1.1 of the specifications and conditions, the national association appointed may  carry out its task directly itself or it may request FIFA to appoint a local organizing committee  comprising representatives of the national association concerned and of FIFA. (9)  The specifications and conditions also stipulate that the national association appointed and  its local organizing committee are placed under the control of the FIFA World Cup organizing  committee, which has the last word in all matters. (10)  On 19 May 1984, FIFA appointed the Federazione italiana gioco calcio (FIGC) as organizer of  the 1990 World Cup. (11)  In accordance with the FIFA specifications and conditions for the organization of the World  Cup, FIFA and the FIGC agreed to set up a local organizing committee on 3 December 1984. (12)  The document establishing the local organizing committee provides that the committee is to  comprise a maximum of 15 members, including five from FIFA and 10 from Italy, and that its head  office will be in Zurich under the auspices of FIFA, with a branch office in Rome. (13)  In fact, the number of members was limited to 11, i.e. two from FIFA and 9 from the FIGC. (14)  The setting up of the local organizing committee was ratified by the FIFA executive committee  at a meeting held in Zurich on 28 April 1985, and on 11 June 1985 FIFA drew up the regulations  governing the organization and operation of the local organizing committee for the 1990 World Cup. (15)  The function of the local organizing committee is specified in Article 3 of the regulation as  being to perform all activities relating, directly or indirectly, to the technical and logistical  organization of the World Cup in Italy in 1990, in compliance with the operating limits laid down  in the specifications and conditions drawn up by FIFA and the 1990 FIFA World Cup regulations. (16)  Amongst such activities, the local organizing committee is in particular required to propose  to FIFA the plan for distributing and setting entrance tickets and to deal subsequently with the  implementation of the plan. (17)  Lastly, a number of aspects of relations between FIFA and the local organizing committee were  covered in a document entitled 'Agreement between FIFA and the local organizing committee Italia  90`, signed by the administrative director of the local organizing committee and the General  Secretary of FIFA. With regard to the sale of tickets, the document stipulates that the directives governing the sale  of tickets and their prices must be approved by FIFA (a requirement which FIFA considered  essential). C.  The parties concerned (18)  FIFA is a federation of national football associations from 158  countries and is based in Zurich. Its object is to promote football and, for this purpose, to  organize the World Cup every four years. FIFA's revenue derives from the dues paid by its members and from a percentage of revenue from  international matches and world championships. (19)  The Federazione italiana gioco calcio (FIGC) represents the various Italian football  associations. It is based in Rome and has a Chairman and a General Secretary. (20)  The Compagnia italiana turismo SpA (CIT) is a subsidiary of the Ente ferrovie dello Stato. It is one of the main travel agencies in Italy. CIT Italia also has subsidiaries in other European countries, including Belgium, France and the  United Kingdom. (21)  Italia Tour SpA (Italia Tour) is a subsidiary of Alitalia - Linee Aeree Italiana SpA, which  also carries out travel agency activities within and outside Italy. (22)  90 Tour Italia SpA (90 Tour Italia) is a company created jointly by CIT and Italia Tour for  the purpose of marketing package tours to the 1990 World Cup. Its existence is closely bound up  with the organization of the 1990 World Cup. D.  The financing of the World Cup (23)  The expenditure involved in establishing the  infrastructure required for the World Cup was borne by the organizing federation or the organizing  country. This applied to the work involved in converting grounds, improving roads, hotels, etc. (24)  The organizing federation received the following revenue: (a)  some 15  % of net competition profits, calculated as follows: -  proceeds from television rights plus the sale of tickets, -  minus the expenses entailed in organizing the World Cup; (b)  the commercial exploitation in Italy of the 1990 World Cup emblem, created by the organizing  federation; (c)  a proportion of match revenue to cover the reimbursement of State, provincial and municipal  taxes and the hire of grounds; (d)  a percentage of ticket revenue, to be determined with FIFA as a contribution towards the  organization expenses proper. (25)  Contracts relating to advertising and the commercial exploitation of emblems and television  contracts were concluded directly by FIFA. (26)  Estimated total World Cup revenue was Sfr 220 million, made up as follows: -  Sfr 75 million from the sale of tickets, -  Sfr 55 million from the sale of advertising rights, -  Sfr 90 million from the sale of television rights. E.  The general ticket distribution system (27)  The general ticket distribution system covered a  total of some 2  700  000 tickets broken down as follows: -  12  % distributed in Italy by the national football associations, -  4  % distributed in Italy by the official World Cup sponsors, -  34  % distributed in Italy by the Banca Nazionale del Lavoro ('BNL`), -  15  % distributed outside Italy by the national sport associations, -  5  % distributed outside Italy by the main European football association, -  5  % distributed outside Italy by BNL or its representatives, -  25  % distributed outside Italy by 90 Tour Italia as part of package tours. F.  The conditions governing distribution of tickets not included in package tours (28)  The  distribution of tickets by the football associations was subject to restrictions set out in a FIFA  circular sent on 23 October 1989 to all the national FIFA associations, the main provisions of  which were as follows: -  ticket sales were intended only for the associations themselves, -  sale to travel agencies or other bodies was prohibited. If the national association intended to  organize a trip through the intermediary of a travel agency normally used by it, it was asked to  contact 90 Tour Italia in order to ensure that such arrangements were coordinated, and -  sales  were to take place only in the country itself. (29)  The distribution of tickets by BNL and its agents was also subject to certain restrictions.  BNL could not sell tickets to travel agencies, nor could BNL agents resell their tickets to travel  agencies. In addition, each spectator could acquire no more than a maximum of four series, so as to prevent  any parallel procurement by travel agencies. BNL agents could sell such tickets only in their own countries and had to inform BNL of the  identity of those acquiring tickets. These requirements were also set out in a letter which BNL sent on 16 March 1989 to the Crédit  communal de Belgique as its agent for the sale of tickets in Belgium. G.  The distribution of tickets as part of package tours (30)  On 26 June 1987, a contract was  concluded between the local organizing committee, on the one hand, and CIT and Italia Tour, on the  other, the main provisions of which are as follows: -  the local organizing committee entrusted CIT and Italia Tour with the task of providing, through  the intermediary of 90 Tour Italia, a joint company to be created, all the tourist, hotel and  transport services requested by the local organizing committee in connection with the 1990 World  Cup in order to meet its requirements and the requirements of FIFA, referees, official delegations  and teams, journalists and any persons specified by the local organizing committee, -  the local organizing committee also conferred on 90 Tour Italia exclusive world rights for the  organization of: -  the various 1990 World Cup package tours and any services connected with the World Cup during  the period 1987 to 1990, and -  an appropriate network for distributing such services both in  Italy and in the rest of the world, -  the local organizing committee granted 90 Tour Italia exclusive world rights for the issue of  stadium entrance tickets to be included in package tours and assured it of a number of tickets at  least equal to 30  % of the capacity of the stadia, -  in return for the concession of the abovementioned rights, 90 Tour Italia was to pay to the  local organizing committee a percentage of the turnover achieved under the contract throughout its  period of validity, such percentage being equal to 0,5  % of the gross turnover, or Lit 700  million, whichever sum was the higher, -  in carrying out its tasks, 90 Tour Italia was authorized to present itself as the exclusive  authorized agent of the local organizing committee in the area of tourism and to use the title  'tour operator for the local organizing committee Italia `90`, -  CIT and Italia Tour were jointly responsible together with 90 Tour to the local organizing  committee, -  the contract was valid until 31 December 1990. (31)  A second contract was concluded on 11 February 1988 between the local organizing committee  and 90 Tour Italia, with the counter-signature of the chairman of CIT SpA and Italia Tour SpA. This contract reiterates that CIT and Italia Tour have declared themselves willing to provide the  local organizing committee with all the tourist services which the local organizing committee  requires in connection with the World Cup and to put together package tours including entrance  tickets to the various World Cup matches, package tours which would be marketed on an exclusive  basis throughout the world. The contract then goes on to repeat the provisions of the contract concluded on 26 June 1987  between the local organizing committee on the one hand and CIT and Italia Tour on the other,  notably as regards: -  the supply of tourist, hotel and transport services by 90 Tour Italia to the local organizing  committee, -  the world exclusive rights granted to 90 Tour Italia by the local organizing committee for the  issuing of tickets as part of package tours, -  the world exclusive rights granted to 90 Tour Italia to acquire, exclusively for the package  tours sector, all or some of any tickets still available when the local organizing committee has  fulfilled its other engagements. This agreement was valid until 31 December 1990. (32)  For the purpose of marketing its package tours, 90 Tour Italia concluded contracts with  travel agencies in the various countries. As far as the Member States were concerned, 90 Tour Italia concluded a contract with one agency in  Ireland and one in Belgium/Luxembourg. In the other Community countries, contracts were concluded  with a number of agencies. (33)  In all cases, the agencies approved by 90 Tour Italia undertook to resell the package tours  at retail level only on their own territories. The agencies could if they wished resell the package  tours at the wholesale level, but only to: -  agencies selling at the retail level which were established on their respective territories and  which undertook to resell the package tours at the retail level, or -  agencies selling at the wholesale level which were established on their respective  territories and which undertook to resell the package tours to agencies selling at the retail level  which were themselves established within the relevant territory. (34)  The authorized agencies were not in any circumstances allowed to resell the entrance tickets  separately from the package tours. (35)  The relevant contracts related to a total of some 540  000 tickets to be included in the  package tours. The prices of the package tours differed considerably depending on aspects such as the number of  days, the type of accommodation, the type of transport, distance and the meals included. The prices of the package deals sold in Belgium by the agency authorized by 90 Tour Italia, for  example, ranged from ECU 143 to ECU 840. H.  The question of safety (36)  The organization of the World Cup raises problems relating to  safety that have to be taken into account. Such problems were outlined during the course of the  proceeding by the deputy procurator of the Republic (sostituto procuratore della Repubblica  Italiana), responsible for coordinating the organization of safety arrangements during the World  Cup, and by the representatives of the local organizing committee and may be summarized as  follows. (37)  The main problem for the organizers was to ensure that opposing groups of supporters were  kept separate from one another and did not clash in or around the grounds. It was therefore  necessary to ensure that spectators were grouped together by nationality within the grounds. (38)  For this purpose, the organizers carried out work within the grounds that would in particular  allow all spectators to be seated. (39)  In addition, a central computerized system managed by BNL was set up with the aim of  identifying the nationality of all the spectators and allowing seats to be allocated on the basis  of nationality. The tickets distributed by BNL and its agents were sold only on presentation of an  identity document, and the relevant information was entered in the central BNL computer. (40)  The procedure was the same for package tours; each person purchasing a package tour had to  provide evidence of his identity, which was entered in the BNL computer via a computerized  sub-system managed by 90 Tour Italia. Each person travelling on a package tour thus received a  ticket corresponding to his nationality. (41)  The organizational arrangements still left open the possibility that individual supporters  could purchase tickets not intended for them, notably on the black market. However, according to the organizers, such practices were not widespread and posed little risk in  terms of safety. The main problem was the formation of 'groups` of supporters close to or among  opposing supporters. (42)  According to the organizers, it had therefore to be ensured that independent travel agencies  not controlled by the local organizing committee could not acquire tickets. Such travel agencies  would have been able to resell such tickets, either separately or as part of package tours, to  supporters of a different nationality than that for which they were intended, thus jeopardizing  spectator safety. II.  LEGAL ASSESSMENT A.  The concept of undertaking (43)  In accordance with the case law of the  Court of Justice, any entity carrying on activities of an economic nature, regardless of its legal  form, constitutes an undertaking within the meaning of Article 85 of the EEC Treaty (see in  particular Cases 36/74 of 12 December 1974, Walrave v. Union Cycliste Internationale  (1) and  C-41/90 of 23 April 1991, Hoefner v. Elser/Macrotron  (2)). An activity of an economic nature means any activity, whether or not profit-making, that involves  economic trade (see Case 41/83 of 20 March 1985, Italy v. Commission (British Telecommunications)  (3)). (44)  Regarding the commercial nature of the World Cup The World Cup is indisputably a major  sporting event. However, it also involves activities of an economic nature, notably as regards: -  the sale of 2  700  000 entrance tickets for matches, more than 20  % of which are included in  package tours comprising hotel accommodation, transport and sightseeing, -  the conclusion of contracts for advertising on panels within the grounds, -  the commercial exploitation of the FIFA emblems, the World Cup, the FIFA fair-play trophy and  the World Cup mascot, -  the commercial exploitation by the local organizer of a specific emblem for the 1990 World Cup,  and -  the conclusion of television broadcasting contracts. (45)  The economic value of the World Cup is, moreover, acknowledged in Article 3.4 of the  specifications and conditions laid down by FIFA for the organizing federation. (46)  The economic value of the World Cup was also acknowledged by FIFA representatives at the  hearing (see page 126 of the hearing record). (47) FIFA FIFA is a federation of sports associations and accordingly carries out sports  activites. However, FIFA also carries out activities of an economic nature, notably as regards: -  the conclusion of advertising contracts, -  the commercial exploitation of the World Cup emblems, and -  the conclusion of contracts  relating to television broadcasting rights. (48)  In the case of the 1990 World Cup, the sale of advertising and television broadcasting rights  by FIFA accounted for some 65  % of total World Cup revenue, estimated at Sfr 220 million. (49)  It must therefore be concluded that FIFA is an entity carrying on activities of an economic  nature and constitutes an undertaking within the meaning of Article 85 of the EEC Treaty. (50)  The Federazione Italiana Gioco Calcio (FIGC) is the national Italian football association,  appointed by FIFA to organize the 1990 World Cup. (51)  The FIGC was accordingly responsible for the entire organization of the event in accordance  with the provisions of the 1990 World Cup regulations and had in particular the task of ensuring  that grounds were in order, press facilities provided, parking spaces laid out, etc. (52)  For the purpose of financing such expenditure, the FIGC had a share in the net profits of the  competition and was able to exploit commercially in Italy the 1990 World Cup emblem, which it had  itself created. (53)  The FIGC thus also carries on activities of an economic nature and is consequently an  undertaking within the meaning of Article 85 of the EEC Treaty. (54)  Local organizing committee The local organizing committee is a body set up jointly by FIFA  and the FIGC for the purpose of carrying on all activities relating directly or indirectly to the  technical and logistical organization of the World Cup. The local organizing committee's tasks included the establishment and implementation of the ticket  distribution arrangements. (55)  The local organizing committee's revenue derived partly from television rights, advertising  rights, the sale of tickets and the commercial exploitation in Italy of the World Cup emblem. (56)  The exclusive rights granted to 90 Tour Italia resulted in remuneration for the local  organizing committee, in accordance with the provisions of Article 5 of the contract of 26 June  1987. (57)  It must therefore be concluded that the local organizing committee was a body carrying on  activities of an economic nature and consequently constituted an undertaking within the meaning of  Article 85. (58)  The Compagnia Italiana Tourismo SpA (CIT) is an Italian company engaged in travel agency  activities. It is therefore an undertaking within the meaning of Article 85. (59)  Italia Tour SpA is a company carrying on an activity similar to that of CIT and is thus also  an undertaking within the meaning of Article 85. (60)  90 Tour Italia SpA is a company established under Italian law by CIT and Italia Tour for the  purpose of putting together and marketing package tours to the 1990 World Cup. It is therefore an  undertaking within the meaning of Article 85 of the EEC Treaty. B.  The contracts (61)  The conditions under which 90 Tour Italia was active in marketing the  package tours derive from two contracts: -  a contract concluded on 26 June 1987 between the local organizing committee on the one hand and  CIT SpA and Italia Tour on the other, and -  a contract concluded on 11 February 1988 between the  local organizing committee and 90 Tour Italia reiterating the main provisions of the abovementioned  contract. (62)  These two contracts were for an identical term of validity, ending on 31 December 1990. The  contract concluded on 11 February 1988 does not contain any provision cancelling or replacing the  contract concluded on 26 June 1987. (63)  It should also be noted that the contract concluded on 11 February 1988 between the local  organizing committee and 90 Tour Italia was countersigned by CIT and Italia Tour which, under  Article 8 of the contract, declared themselves jointly responsible with 90 Tour Italia vis-à-vis  the local organizing committee. (64)  Consequently, contrary to the statements made by the representatives of CIT during the  proceeding, it cannot be argued that any anti-competitive effect of the contract between the local  organizing committee and 90 Tour Italia cannot be blamed on CIT and Italia Tour. The two  abovementioned contracts must therefore be taken into account in this proceeding. C.  On the responsibility of FIFA and FIGC (65)  The two contracts which are the subject of this  proceeding were concluded between the local organizing committee on the one hand and 90 Tour  Italia, CIT and Italia Tour on the other. The contracts were not signed by FIFA or the FIGC. (66)  However, it should be borne in mind that the local organizing committee, although having a  separate legal personality, did not have any real autonomy as regards its conduct. Such lack of  autonomy is due in particular to the following aspects. (67)  The local organizing committee was set up jointly by the FIGC and FIFA specifically for the  purpose of carrying on all activities relating directly or indirectly to the technical and  logistical organization of the 1990 World Cup in Italy, in compliance with the operating  constraints laid down in the specifications and conditions established by FIFA and the 1990 World  Cup regulations (Article 3 of the local organizing committee regulations of 14 August 1985). (68)  The existence of the local organizing committee was consequently closely linked to the  organization of the 1990 World Cup and was to end once the 1990 World Cup was over. (69)  The local organizing committee comprised 9 representatives of the FIGC and the President and  General Secretary of FIFA. These 11 members, meeting in plenary session, had full powers of  decision over the committees' activities. (70)  The lcoal organizing committee's restricted executive committee, which included FIFA's  General Secretary, could be drawn only from the local organizing committee's own members. (71)  As a result of the presence of their representatives within the local organizing committee's  decision-making body, the FIGC and FIFA directly and effectively controlled the whole of the  committee's activities on a joint basis, notably as regards ticket distribution. In this area, the local organizing committee was subject to the instructions of FIFA and the FIGC. (72)  In addition, in accordance with the provisions stipulated in the specifications and  conditions, FIFA had the last word in all decisions of principle in all matters, including the  ticket distribution system, which was a key element in the organization of the World Cup. (73)  The ticket distribution system had in any case to be approved by FIFA. Thus, the contracts  concluded on 26 June 1987 between the local organizing committee and CIT/Italia Tour and on 11  February 1988 between the local organizing committee and 90 Tour Italia regarding the distribution  of tickets to be included in package tours included a suspensory clause to the effect that the  policy on ticket sales had to be approved by FIFA. (74)  All in all, it must be concluded that the local organizing committee was not in a position to  determine in a really autonomous manner its behaviour on the market and that the conclusion of the  above-mentioned contracts of 26 June 1987 and 11 February 1988 is attributable jointly to the local  organizing committee, the FIGC and FIFA. D.  The concept of agreement (75)  The two contracts of 26 June 1987 and 11 February 1988  constitute agreements between undertakings within the meaning of Article 85 of the EEC Treaty. E.  On the nature of the contracts in question (76)  During the proceeding, some of the parties  stated that the purpose of the contracts was to entrust to 90 Tour Italia the function of carrying  out a task which the local organizing committee was not in a position to perform. It might be concluded from this that 90 Tour Italia acted solely as an agent and that the contracts  in question were not caught by the provisions of Article 85 of the Treaty. (77)  Such an analysis cannot be accepted for the following reasons: -  90 Tour Italia was able to acquire entrance tickets to the grounds from the local organizing  committee, but subsequently it provided different services, namely package tours, of which the  tickets were only one element; the package tours were marketed at the prices and on the conditions  set by 90 Tour Italia, -  90 Tour Italia had to undertake to acquire, and did actually acquire, a considerable number of  tickets for matches whose appeal to spectators was heavily dependent on the qualification of their  team and hence unpredictable, and -  90 Tour Italia thus accepted a high commercial risk, as the  representatives of CIT pointed out at the hearing (see pages 60 and 70 of the hearing record). (78)  Accordingly, the functions of 90 Tour Italia went well beyond those of a mere agent, and the  contracts are therefore caught by Article 85 of the Treaty. F.  Effect on competition (79)  The purpose of this Decision is solely to establish the effect on  competition produced by the two abovementioned contracts concluded between the local organizing  committee, 90 Tour Italia, CIT and Italia Tour. However, in assessing the object and effects of the contracts in the light of Article 85 (1) of the  Treaty, it is necessary to take into account the context within which they operated, notably entire  ticket distribution system as described above. (80)  Under the two contracts of 26 June 1987 and 11 February 1988, the local organizing  committee: -  conferred on 90 Tour Italia world exclusive rights in organizing the various package tours to  the World Cup and in establishing an appropriate network for the distribution of such package tours  in Italy and in the rest of the world, -  allowed 90 Tour Italia to present itself as the exclusive agent of the local organizing  committee and to use the description 'Tour Operator for Italia 90`, and -  within this framework,  also granted 90 Tour Italia world exclusive rights to issue ground entrance tickets for inclusion  in package tours and made available to it a number of tickets at least equal to 30  % of the  capacity of the grounds. (81)  These exclusive rights were not granted by the local organizing committee free of charge, but  entailed remuneration by 90 Tour Italia in accordance with the provisions of Article 5 of the  contract of 26 June 1987. (82)  90 Tour Italia subsequently authorized agencies in the various countries to sell its package  tours. (83)  The result of these exclusive rights was that 90 Tour Italia was the only tour operator able  to acquire ground entrance tickets from the local organizing committee for the purpose of putting  together and selling package tours that included such tickets. (84)  Other tour operators, and travel agencies as well, were not able to acquire ground entrance  tickets from the local organizing committee or from other sources of supply such as the sports  associations or BNL because of the restrictions imposed on the sale of such tickets, and in  particular the ban on resale to travel agencies. (85)  Consequently, the only package tours including ground entrance tickets available on the  market were those put together by 90 Tour Italia. Other tour operators were able to offer only  package tours that did not inlude ground entrance tickets. (86)  Obviously, for anyone wishing to go to Italy for the World Cup, it was crucial to have a  package tour that did include ground entrance tickets. Consequently, tour operators that were not able to offer such package tours were at a considerable  competitive disadvantage vis-à-vis 90 Tour Italia. (87)  The world exclusive rights granted to 90 Tour Italia thus had the effect of restricting  competition between tour operators in the Community. (88)  Furthermore, travel agencies wishing to sell package tours that included match entrance  tickets were able to obtain such package tours from only one tour operator. If world exclusive rights had not been granted to 90 Tour Italia, travel agencies would have been  able to choose between a number of tour operators and possibly obtain more favourable terms, thus  enabling them to gain a competitive edge over other travel agencies. (89)  Consequently, the world exclusive rights enjoyed by 90 Tour Italia also had the effect of  restricting competition between travel agencies within the Community. (90)  During the proceeding, the parties argued that tour operators could sell package tours  without ground entrance tickets and ask their customers to obtain the tickets from BNL or from the  football associations. (91)  This cannot regarded as a valid option. In such a situation, a customer buying a package tour  without tickets would have to go to a BNL branch or agent to obtain tickets corresponding to the  dates of the package tour. Given the time and effort this would entail, potential customers would  obviously give preference to the travel agencies authorized by 90 Tour Italia to sell package tours  with tickets. (92)  A second possibility suggested by the parties during the proceeding was that potential  customers could book a package tour without tickets at a travel agency and ask the travel agency to  purchase the ground entrance tickets for them. (93)  This approach similarly cannot be regarded as a satisfactory alternative solution. Such a procedure would have meant that, for each package tour sold, a travel agency not authorized  by 90 Tour Italia would have to go to the BNL branch or agent with the customer's identity papers  in order to obtain the ground entrance tickets. This procedure would have meant extra work and hence extra costs for the non-authorized travel  agency and would still have left some doubt in the mind of the customer as to the real chances of  obtaining the entrance tickets. This sort of procedure thus placed agencies that did not have tickets at a competitive disadvantage  vis-à-vis the agencies authorized by 90 Tour Italia, which were the only ones that were able to  state in their advertising that they were able to guarantee entrance tickets. (94)  Account must also be taken of the fact that, by fax dated 26 January 1990, BNL instructed all  its sales outlets outside Italy to stop selling entrance tickets as from 31 January 1990. (95)  As a result, as from 1 February 1990, tour operators other than 90 Tour Italia were unable to  sell package tours for which their customers were supposed to purchase the tickets from BNL  branches or agents. (96)  All in all, by granting exclusive rights to 90 Tour Italia to supply entrance tickets to be  included in package tours, alternative sources for the procurement of tickets not being available,  the agreements concluded between, on the one hand, the local organizing committee in its capacity  as a body belonging jointly to FIFA and the FIGC and, on the other, 90 Tour Italia, CIT and Italia  Tour had the effect of restricting competition in the Community within the meaning of Article 85  (1) of the Treaty between our operators and between travel agencies on the market for the sale of  package tours to the 1990 World Cup. The conditions of Article 85 (1) are thus met. G.  Commission Regulation (EEC) No 1983/83 (1) (97)  During the proceeding, the parties argued  that the agreements could have been exempted under Regulation (EEC) No 1983/83 on the application  of Article 85 (3) of the Treaty to categories of exclusive distribution agreements. (98)  Regulation (EEC) No 1983/83 was adopted by the Commission pursuant to Council Regulation  (EEC) No 19/65/EEC of 2 March 1965 on the application of Article 85 (3) of the Treaty to certain  categories of agreements and concerted practices  (2). (99)  Article 1 (1) of Regulation (EEC) No 19/65/EEC explicitly limits the Commission's power to  adopt an exemption regulation to agreements relating to goods only. This restriction is also evident in the wording of the Article, which covers transactions in which  one party purchases a good for resale. (100)  Such purchasing and reselling transactions cannot be applied to services. (101)  It must therefore be concluded that services are excluded from the scope of Council  Regulation (EEC) No 19/65/EEC. (102)  Regulation (EEC) No 1983/83 is thus bound to have the same scope of application, defined as  'agreements to which only two undertakings are party and whereby one party agrees with the other to  supply certain goods for resale within the whole or a defined area of the common market only to  that other`. (103)  In point 11 of its Notice concerning Regulation (EEC) No 1983/83  (1), the Commission  stipulated that 'exclusive agreements for the supply of services rather than the resale of goods  are not covered by the Regulation`. (104)  The agreements to which this proceeding relates concern the supply on an exclusive basis of  entrance tickets to grounds for the purpose of putting together package tours comprising transport,  accommodation and meals. (105)  It is thus obvious that the agreements relate to the supply of services and do not fall  within the scope of application of Regulation (EEC) No 1983/83. (106)  Even if the package tours in question had been deemed to be goods within the meaning of  Article 1 of Regulation (EEC) No 1983/83, the conditions for exemption set out in Article 3 of the  Regulation were not met. Thus, contrary to the provisions of Article 3 (c), users could obtain the package tours with match  entrance tickets in the contract territory only from the exclusive distributor or its  representatives and had no alternative source of supply outside the contract territory, the  contract territory being the entire world. (107)  With regard to the exclusive rights enjoyed by 90 Tour Italia, the representatives of the  local organizing committee stated during the proceeding that such exclusive rights were de facto  exclusive rights resulting from the lack of any other tour operator interested in concluding a  contract with the local organizing committee. (108)  This argument cannot be accepted for the following three reasons: -  if the parties did not wish to conclude an exclusive contract, there is no reason why they  should have incorporated such a clause in the contract, -  the first contract between the local organizing committee and CIT/Italia Tours, signed on 26  June 1987, already provided for such exclusivity. As from that date, the local organizing committee  was thus not in a position to conclude a contract with any other interested tour operator, -  if exclusivity had not been desired by the parties, there is no reason why the parties should  have provided by contract for the financial consideration in respect of such exclusivity. H. The question of safety (109)  During the proceeding, the parties claimed that any restrictions  of competition were justified by safety requirements. The separation of spectators within the grounds by nationality and the need for safety arrangements  around the grounds, it was claimed, meant that only one tour operator could be authorized to put  together the package tours comprising entrance tickets for sale at world level. (110)  From the legal point of view, the parties argued that such restrictions of competition had  to be examined in the light of Article 36 of the Treaty, whose provisions took precedence over the  competition rules laid down in Article 85. The parties referred in this respect to the judgment of  the Court of Justice in Case 40/70 Sirena v. Eda (2). (111)  With regard to the application of Article 36 of the EEC Treaty, the court of Justice held,  in its judgment in Case 40/70 referred to by the parties, that 'Article 36, although it appears in  the chapter of the Treaty dealing with quantitative restrictions on trade between Member States, is  based on a principle equally applicable to the question of competition, in the sense that even if  the rights recognized by the legislation of a Member State on the subject of industrial and  commercial property are not affected, so far as their existence is concerned, by Articles 85 and 86  of the Treaty, their exercise may still fall under the prohibitions imposed by those provisions`. (112)  It must be deduced from this judgment that, as in the case of the rules governing the free  movement of goods, the competition rules may set limits to the exercise of industrial property  rights. The argument put forward by the parties takes the oppposite line in that it claims that  Article 36 sets limits to the application of the competition rules. (113)  At all events, even if this principle were accepted, it would be necessary to ensure that,  in accordance with the provisions of Article 36, the practices in question did not constitute  disguised restrictions of competition and that they were indispensable to the attainment of their  objective. (114)  In his evidence on the problems of safety, the deputy procurator of the Republic, who was  responsible for the coordination of safety arrangements during the World Cup, did not mention the  need to establish world exclusivity for the distribution of package tours inclusive of entrance  tickets to the grounds. (115)  During the hearing, a representative of the local organizing committee stated, with regard  to the package tours, that all the tour operators willing to create a computerized subsystem and  ensure its coordination with that of BNL could have been selected. The local organizing committee's  representative stated in particular that 'two, fifteen or twenty` tour operators could have been  selected (see page 89 of the hearing record). (116)  It must therefore be concluded from the statements of the local organizing committee's  representative himself that the world exclusive rights granted to 90 Tour Italia were not essential  in order to ensure safety during the World Cup. Consequently, even if the principle of Article 36 of the Treaty could be applied to the present  case, the world exclusive rights granted to 90 Tour Italia were disproportionate to the objective  pursued and cannot therefore be justified by the need to maintain safety. (117)  With regard to package tours inclusive of tickets, strict control of ticket distribution was  necessary. It was particularly important that a tour operator putting together such package tours  should be able to make sure that the travel agencies distributing them downstream complied with the  distribution conditions imposed by the tour operator. (118)  For this reason, the Commission considers it justified that travel agencies not controlled  by the organizers, such as the agency which has brought the complaint in this case, should not have  been able to acquire blocks of entrance tickets with a view to putting together package tour that  would have been sold in a way that was not controlled. (119)  However, the Commission considers that a number of tour operators imposing the same  distribution conditions on travel agencies authorized to sell their package tours could have  competed on the market without jeopardizing spectator safety. (120)  The Commission notes that this possibility was acknowledged by the representatives of the  local organizing committee during the hearing when they stated that any tour operators fulfilling  the same criteria as 90 Tour Italia could have been selected. I. Article 85 (3) (121)  The agreements in question were not notified to the Commission with a  view to exemption under Article 85 (3) of the EEC Treaty. (122)  In any case, the Commission considers that the agreements did not fulfil the conditions  required for the granting of such exemption. (123)  Even if it had been considered that the agreements could contribute to improving the  distribution of tickets and package tours, the Commission takes the view that the agreements  imposed restrictions that were not indispensable to the attainment of the objectives pursued and,  moreover, afforded the undertakings the possibility of eliminating competition in respect of a  substantial part of the services in question. J. Effect on trade between Member States (124)  The contracts related to the exclusive  distribution of package tours inclusive of tickets in the Community and the rest of the world,  without any possibility of alternative sources of supply. The contracts thus appreciably affected  trade between Member States, since, if they had not been concluded, trade on the market for such  tours could have been expected to have been greater. K. Imposition of fines (125)  It must be borne in mind that this is the first time that the  Commission has taken action on the distribution of tickets for a sporting event. Furthermore, this case involved undoubted complicating factors in view of major safety aspects. Lastly, the infringement came to an end with the completion of the 1990 World Cup. Consequently, the Commission considers that fines should not be imposed on the parties to the  agreements. (126)  However, the Commission considers that a Decision is necessary in order to clarify the legal  position and prevent the same or any similar infringement from being committed in future. In  accordance with the case law of the Court of Justice (Case 7/82, GVL v. Commission  (1)), the  Commission therefore has a legitimate interest in finding that the contracts infringed Article 85  of the Treaty, HAS ADOPTED THIS DECISION: Article 1 FIFA, the FIGC, the local organizing  committee Italia `90, CIT SpA, Italia Tour SpA and 90 Tour Italia SpA have infringed Article 85 (1)  of the EEC Treaty as regards the provisions of the contracts of 26 June 1987 and 11 February 1988  concluded between the local organizing committee Italia `90 and CIT SpA and Italia Tour SpA, on the  one hand, and 90 Tour Italia SpA, on the other, which provided for the exclusive supply at world  level to 90 Tour Itaia SpA of ground entrance tickets for the purpose of putting together package  tours to the 1990 World Cup. Such tickets formed part of a general system for the distribution of  ground entrance tickets developed and implemented by the local organizing committee Italia `90 in  accordance with the instructions of the FIGC and FIFA, after approval by FIFA, a system which  prohibited the sale of tickets for the putting together of such package tours, thus making it  impossible for other tour operators and travel agencies to find sources of supply other than 90  Tour Italia SpA. Article 2 This Decision is addressed to: -  90 Tour Italia SpA Via Laura Mantegazza, 75 I-Roma, -  Col Italia/Italia `90 Via Po, 36 I-00198 Roma, -  Compagnia Italiana Turismo spA Piazza della Repubblica 68 I-00185 Roma, -  Federation internationale de football association PO Box 85 Hitzigweg 11 Ch-8030 Zurich, -  Federazione italiana gioco calcio Via Po 36 I-00198 Roma, -  Italia Tour SpA Piazzale Schuman 78 I-Roma. Done at Brussels, 27 October  1992. For the Commission Leon BRITTAN Vice-President  (1)  ECR 1405 [1974]. (2)  ECR I-1979 [1991]. (3)  ECR 873 [1985]. (1) OJ No L 173, 30. 6. 1983, p. 1. (2) OJ No 36, 6. 3. 1965, p. 533/65. (1) OJ No C 101, 13. 4. 1984, p. 2. (2) ECR 69 [1971]. (1) ECR 483 [1983].