Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive distribution agreements

( 1 ) OJ NO 36 , 6 . 3 . 1965 , P . 533/65 .
( 2 ) OJ NO C 172 , 10 . 7 . 1982 , P . 3 .
( 3 ) OJ NO L 376 , 31 . 12 . 1982 , P . 33 .
( 4 ) OJ NO 57 , 25 . 3 . 1967 , P . 849/67 .
COMMISSION REGULATION ( EEC ) NO 1983/83 OF 22 JUNE 1983 ON THE APPLICATION OF ARTICLE 85 ( 3 ) OF THE TREATY TO CATEGORIES OF EXCLUSIVE DISTRIBUTION AGREEMENTS
THE COMMISSION OF THE EUROPEAN COMMUNITIES
,
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , AND IN PARTICULAR ARTICLE 87 THEREOF ,
HAVING REGARD TO COUNCIL REGULATION 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 ( 1 ) , AS LAST AMENDED BY THE ACT OF ACCESSION OF GREECE , AND IN PARTICULAR ARTICLE 1 THEREOF ,
HAVING PUBLISHED A DRAFT OF THIS REGULATION ( 2 ) ,
HAVING CONSULTED THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND DOMINANT POSITIONS ,
( 1 ) WHEREAS REGULATION NO 19/65/EEC EMPOWERS THE COMMISSION TO APPLY ARTICLE 85 ( 3 ) OF THE TREATY BY REGULATION TO CERTAIN CATEGORIES OF BILATERAL EXCLUSIVE DISTRIBUTION AGREEMENTS AND ANALOGOUS CONCERTED PRACTICES FALLING WITHIN ARTICLE 85 ( 1 ) ;
( 2 ) WHEREAS EXPERIENCE TO DATE MAKES IT POSSIBLE TO DEFINE A CATEGORY OF AGREEMENTS AND CONCERTED PRACTICES WHICH CAN BE REGARDED AS NORMALLY SATISFYING THE CONDITIONS LAID DOWN IN ARTICLE 85 ( 3 ) ;
( 3 ) WHEREAS EXCLUSIVE DISTRIBUTION AGREEMENTS OF THE CATEGORY DEFINED IN ARTICLE 1 OF THIS REGULATION MAY FALL WITHIN THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ) OF THE TREATY ; WHEREAS THIS WILL APPLY ONLY IN EXCEPTIONAL CASES TO EXCLUSIVE AGREEMENTS OF THIS KIND TO WHICH ONLY UNDERTAKINGS FROM ONE MEMBER STATE ARE PARTY AND WHICH CONCERN THE RESALE OF GOODS WITHIN THAT MEMBER STATE ; WHEREAS , HOWEVER , TO THE EXTENT THAT SUCH AGREEMENTS MAY AFFECT TRADE BETWEEN MEMBER STATES AND ALSO SATISFY ALL THE REQUIREMENTS SET OUT IN THIS REGULATION THERE IS NO REASON TO WITHHOLD FROM THEM THE BENEFIT OF THE EXEMPTION BY CATEGORY ;
( 4 ) WHEREAS IT IS NOT NECESSARY EXPRESSLY TO EXCLUDE FROM THE DEFINED CATEGORY THOSE AGREEMENTS WHICH DO NOT FULFIL THE CONDITIONS OF ARTICLE 85 ( 1 ) OF THE TREATY ;
( 5 ) WHEREAS EXCLUSIVE DISTRIBUTION AGREEMENTS LEAD IN GENERAL TO AN IMPROVEMENT IN DISTRIBUTION BECAUSE THE UNDERTAKING IS ABLE TO CONCENTRATE ITS SALES ACTIVITIES , DOES NOT NEED TO MAINTAIN NUMEROUS BUSINESS RELATIONS WITH A LARGER NUMBER OF DEALERS AND IS ABLE , BY DEALING WITH ONLY ONE DEALER , TO OVERCOME MORE EASILY DISTRIBUTION DIFFICULTIES IN INTERNATIONAL TRADE RESULTING FROM LINGUISTIC , LEGAL AND OTHER DIFFERENCES ;
( 6 ) WHEREAS EXCLUSIVE DISTRIBUTION AGREEMENTS FACILITATE THE PROMOTION OF SALES OF A PRODUCT AND LEAD TO INTENSIVE MARKETING AND TO CONTINUITY OF SUPPLIES WHILE AT THE SAME TIME RATIONALIZING DISTRIBUTION ; WHEREAS THEY STIMULATE COMPETITION BETWEEN THE PRODUCTS OF DIFFERENT MANUFACTURERS ; WHEREAS THE APPOINTMENT OF AN EXCLUSIVE DISTRIBUTOR WHO WILL TAKE OVER SALES PROMOTION , CUSTOMER SERVICES AND CARRYING OF STOCKS IS OFTEN THE MOST EFFECTIVE WAY , AND SOMETIMES INDEED THE ONLY WAY , FOR THE MANUFACTURER TO ENTER A MARKET AND COMPETE WITH OTHER MANUFACTURERS ALREADY PRESENT ; WHEREAS THIS IS PARTICULARLY SO IN THE CASE OF SMALL AND MEDIUM-SIZED UNDERTAKINGS ; WHEREAS IT MUST BE LEFT TO THE CONTRACTING PARTIES TO DECIDE WHETHER AND TO WHAT EXTENT THEY CONSIDER IT DESIRABLE TO INCORPORATE IN THE AGREEMENTS TERMS PROVIDING FOR THE PROMOTION OF SALES ;
( 7 ) WHEREAS , AS A RULE , SUCH EXCLUSIVE DISTRIBUTION AGREEMENTS ALSO ALLOW CONSUMERS A FAIR SHARE OF THE RESULTING BENEFIT AS THEY GAIN DIRECTLY FROM THE IMPROVEMENT IN DISTRIBUTION , AND THEIR ECONOMIC AND SUPPLY POSITION IS IMPROVED AS THEY CAN OBTAIN PRODUCTS MANUFACTURED IN PARTICULAR IN OTHER COUNTRIES MORE QUICKLY AND MORE EASILY ;
( 8 ) WHEREAS THIS REGULATION MUST DEFINE THE OBLIGATIONS RESTRICTING COMPETITION WHICH MAY BE INCLUDED IN EXCLUSIVE DISTRIBUTION AGREEMENTS ; WHEREAS THE OTHER RESTRICTIONS ON COMPETITION ALLOWED UNDER THIS REGULATION IN ADDITION TO THE EXCLUSIVE SUPPLY OBLIGATION PRODUCE A CLEAR DIVISION OF FUNCTIONS BETWEEN THE PARTIES AND COMPEL THE EXCLUSIVE DISTRIBUTOR TO CONCENTRATE HIS SALES EFFORTS ON THE CONTRACT GOODS AND THE CONTRACT TERRITORY ; WHEREAS THEY ARE , WHERE THEY ARE AGREED ONLY FOR THE DURATION OF THE AGREEMENT , GENERALLY NECESSARY IN ORDER TO ATTAIN THE IMPROVEMENT IN THE DISTRIBUTION OF GOODS SOUGHT THROUGH EXCLUSIVE DISTRIBUTION ; WHEREAS IT MAY BE LEFT TO THE CONTRACTING PARTIES TO DECIDE WHICH OF THESE OBLIGATIONS THEY INCLUDE IN THEIR AGREEMENTS ; WHEREAS FURTHER RESTRICTIVE OBLIGATIONS AND IN PARTICULAR THOSE WHICH LIMIT THE EXCLUSIVE DISTRIBUTOR'S CHOICE OF CUSTOMERS OR HIS FREEDOM TO DETERMINE HIS PRICES AND CONDITIONS OF SALE CANNOT BE EXEMPTED UNDER THIS REGULATION ;
( 9 ) WHEREAS THE EXEMPTION BY CATEGORY SHOULD BE RESERVED FOR AGREEMENTS FOR WHICH IT CAN BE ASSUMED WITH SUFFICIENT CERTAINTY THAT THEY SATISFY THE CONDITIONS OF ARTICLE 85 ( 3 ) OF THE TREATY ;
( 10 ) WHEREAS IT IS NOT POSSIBLE , IN THE ABSENCE OF A CASE-BY-CASE EXAMINATION , TO CONSIDER THAT ADEQUATE IMPROVEMENTS IN DISTRIBUTION OCCUR WHERE A MANUFACTURER ENTRUSTS THE DISTRIBUTION OF HIS GOODS TO ANOTHER MANUFACTURER WITH WHOM HE IS IN COMPETITION ; WHEREAS SUCH AGREEMENTS SHOULD , THEREFORE , BE EXCLUDED FROM THE EXEMPTION BY CATEGORY ; WHEREAS CERTAIN DEROGATIONS FROM THIS RULE IN FAVOUR OF SMALL AND MEDIUM-SIZED UNDERTAKINGS CAN BE ALLOWED ;
( 11 ) WHEREAS CONSUMERS WILL BE ASSURED OF A FAIR SHARE OF THE BENEFITS RESULTING FROM EXCLUSIVE DISTRIBUTION ONLY IF PARALLEL IMPORTS REMAIN POSSIBLE ; WHEREAS AGREEMENTS RELATING TO GOODS WHICH THE USER CAN OBTAIN ONLY FROM THE EXCLUSIVE DISTRIBUTOR SHOULD THEREFORE BE EXCLUDED FROM THE EXEMPTION BY CATEGORY ; WHEREAS THE PARTIES CANNOT BE ALLOWED TO ABUSE INDUSTRIAL PROPERTY RIGHTS OR OTHER RIGHTS IN ORDER TO CREATE ABSOLUTE TERRITORIAL PROTECTION ; WHEREAS THIS DOES NOT PREJUDICE THE RELATIONSHIP BETWEEN COMPETITION LAW AND INDUSTRIAL PROPERTY RIGHTS , SINCE THE SOLE OBJECT HERE IS TO DETERMINE THE CONDITIONS FOR EXEMPTION BY CATEGORY ;
( 12 ) WHEREAS , SINCE COMPETITION AT THE DISTRIBUTION STAGE IS ENSURED BY THE POSSIBILITY OF PARALLEL IMPORTS , THE EXCLUSIVE DISTRIBUTION AGREEMENTS COVERED BY THIS REGULATION WILL NOT NORMALLY AFFORD ANY POSSIBILITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION ; WHEREAS THIS IS ALSO TRUE OF AGREEMENTS THAT ALLOT TO THE EXCLUSIVE DISTRIBUTOR A CONTRACT TERRITORY COVERING THE WHOLE OF THE COMMON MARKET ;
( 13 ) WHEREAS , IN PARTICULAR CASES IN WHICH AGREEMENTS OR CONCERTED PRACTICES SATISFYING THE REQUIREMENTS OF THIS REGULATION NEVERTHELESS HAVE EFFECTS INCOMPATIBLE WITH ARTICLE 85 ( 3 ) OF THE TREATY , THE COMMISSION MAY WITHDRAW THE BENEFIT OF THE EXEMPTION BY CATEGORY FROM THE UNDERTAKINGS PARTY TO THEM ;
( 14 ) WHEREAS AGREEMENTS AND CONCERTED PRACTICES WHICH SATISFY THE CONDITIONS SET OUT IN THIS REGULATION NEED NOT BE NOTIFIED ; WHEREAS AN UNDERTAKING MAY NONETHELESS IN A PARTICULAR CASE WHERE REAL DOUBT EXISTS , REQUEST THE COMMISSION TO DECLARE WHETHER ITS AGREEMENTS COMPLY WITH THIS REGULATION ;
( 15 ) WHEREAS THIS REGULATION DOES NOT AFFECT THE APPLICABILITY OF COMMISSION REGULATION ( EEC ) NO 3604/82 OF 23 DECEMBER 1982 ON THE APPLICATION OF ARTICLE 85 ( 3 ) OF THE TREATY TO CATEGORIES OF SPECIALIZATION AGREEMENTS ( 3 ) ; WHEREAS IT DOES NOT EXCLUDE THE APPLICATION OF ARTICLE 86 OF THE TREATY ,