Neste Markkinointi Oy v Yötuuli Ky and Others.
Date: 2000-12-07
25 It should be recalled that, even if exclusive purchasing agreements do not have as their object the restriction of competition within the meaning of Article 85(1), it is nevertheless necessary to ascertain whether they have the effect of preventing, restricting or distorting competition. The effects of an exclusive purchasing agreement have to be assessed in the economic and legal context in which the agreement occurs and where it may combine with other agreements to have a cumulative effect on competition. It is therefore necessary to analyse the effects of such an agreement, taken together with other agreements of the same type, on the opportunities of national competitors or those from other Member States to gain access to the relevant market or to increase their market share (Delimitis, paragraphs 13 to 15).
26 In that connection, it is necessary to examine the nature and extent of all similar contracts which tie a large number of points of sale to various suppliers and to take into account, among the other factors pertaining to the economic and legal context of the agreement, factors relating to opportunities for access to the relevant market. In that regard, it is necessary to examine whether there are real concrete possibilities for a new competitor to enter the network of contracts. It is also necessary to take account of the conditions under which competitive forces operate on the relevant market (Delimitis, paragraphs 21 and 22).
27 If an examination of all similar contracts reveals that it is difficult to gain access to the relevant market, it is necessary to assess the extent to which the contracts entered into by the supplier concerned contribute to the cumulative effect produced by the totality of the agreements. Under the Community rules on competition, responsibility for such an effect of closing off the market must be attributed to the suppliers who make an appreciable contribution thereto. Contracts entered into by suppliers whose contribution to the cumulative effect is insignificant do not therefore fall under the prohibition laid down in Article 85(1). In order to assess the extent of the contribution of the contracts concluded by a supplier to the cumulative sealing-off effect, the market position of the contracting parties must be taken into consideration. That contribution also depends on the duration of the agreements. If the duration is manifestly excessive in relation to the average duration of contracts generally concluded on the relevant market, the individual contract falls under the prohibition laid down in Article 85(1) (Delimitis, paragraphs 24 to 26).
38 Contrary to the submissions made by the Commission in its observations, that approach does not conflict with the judgment in Delimitis. Although that judgment, in the context of the case then under consideration, set out in paragraphs 25 and 26 the criteria for assessing the extent to which a supplier's contracts, without being more specific, contribute to the cumulative sealing-off effect, it did not exclude a selective assessment according to the various categories of contracts that a particular supplier might have entered into.