SA Binon & Cie v SA Agence et messageries de la presse.
Date: 1985-07-03
16 THIS CASE OF PARALLEL CONDUCT WITHIN A CONTRACTUAL FRAMEWORK ARISES IN PARTICULAR WHERE , AS IN THIS INSTANCE , THE PUBLISHERS '  IDENTICAL RESPONSE TO RETAILERS '  APPLICATIONS FOR APPROVAL WAS MADE INITIALLY , PURSUANT TO AN AGREEMENT , ON THE BASIS OF THE OPINION OF THE CONSULTATIVE COMMITTEES , A PRACTICE WHICH THE BELGIAN COURTS HAVE HELD TO BE CONTRARY TO ARTICLE 85 , AND WHERE , AFTER THE TERMINATION OF THAT AGREEMENT AND ITS REPLACEMENT BY A NEW ONE , PUBLISHERS CONTRIVED TO ENGAGE IN THE SAME PARALLEL CONDUCT BY FOLLOWING THE OPINION OF A DISTRIBUTION AGENCY INSTEAD OF THAT OF A CONSULTATIVE COMMITTEE . IN SUCH CASE THE NEW AGREEMENT , LIKE THE FORMER AGREEMENT , HAS THE EFFECT OF RESTRICTING COMPETITION .
17 MOREOVER , ARTICLE 85 WOULD ALSO BE APPLICABLE IF PARALLEL CONDUCT ON THE PART OF PUBLISHERS WERE CONTINUED AFTER THE TERMINATION OF THE FORMER AGREEMENT AND IN THE ABSENCE OF ITS REPLACEMENT BY A NEW AGREEMENT . AS THE COURT EMPHASIZED IN ITS JUDGMENTS OF 15 JUNE 1976 IN CASES 51 , 86 AND 96/75 ( EMI RECORDS LIMITED V CBS UNITED KINGDOM LIMITED , CBS GRAMMAFON A/S AND CBS SCHALLPLATTEN GMBH RESPECTIVELY , ( 1976 ) ECR 811 , 871 AND 913 ), WITH REGARD TO AGREEMENTS WHICH ARE NO LONGER IN FORCE , IT IS SUFFICIENT , FOR ARTICLE 85 TO BE APPLICABLE , THAT THEY CONTINUE TO PRODUCE THEIR EFFECTS AFTER THEY HAVE FORMALLY CEASED TO BE IN FORCE . THE SYSTEM OF COMPETITION RULES ESTABLISHED BY ARTICLE 85 ET SEQ . OF THE EEC TREATY IS CONCERNED WITH THE ECONOMIC EFFECTS OF AGREEMENTS OR OF ANY COMPARABLE FORM OF CONCERTED PRACTICE OR COORDINATION RATHER THAN WITH THEIR LEGAL FORM .
39 FINALLY , THE THIRD QUESTION IS CONCERNED WITH THE PROBLEM WHETHER THE FACT THAT , WITHIN THE FRAMEWORK OF A SELECTIVE DISTRIBUTION SYSTEM OF NEWSPAPERS AND PERIODICALS , FIXED PRICES MUST BE OBSERVED RENDERS THE SYSTEM INCOMPATIBLE WITH THE PROHIBITION LAID DOWN IN ARTICLE 85 OF THE EEC TREATY .
40 AMP CONTENDS IN THAT REGARD THAT THE PRICES OF NEWSPAPERS AND PERIODICALS ARE FIXED BY THE PUBLISHERS AND NOT , AS THE NATIONAL COURT SEEMS TO THINK , BY THE DISTRIBUTION AGENCY . OBSERVANCE BY RETAILERS OF THE PRICES FIXED BY PUBLISHERS ARISES FROM THE AFOREMENTIONED SPECIAL CHARACTERISTICS OF THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS .
41 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , WHICH TOOK PART IN THE PROCEEDINGS SOLELY IN ORDER TO SUBMIT OBSERVATIONS WITH REGARD TO THE THIRD QUESTION , CONSIDERS THAT THE FREEDOM OF THE PRESS , AS A FUNDAMENTAL RIGHT PROTECTED BY THE CONSTITUTIONAL LAW OF THE MEMBER STATES AND BY THE COURT ' S CASE-LAW , ENTAILS THE FREEDOM TO CONTRIBUTE TO THE FORMATION OF PUBLIC OPINION . FOR THAT REASON NEWSPAPERS AND PERIODICALS AS WELL AS THEIR DISTRIBUTION HAVE SPECIAL CHARACTERISTICS . THE NATURE OF NEWSPAPERS AND PERIODICALS REQUIRES AN EXTREMELY RAPID SYSTEM FOR THEIR DISTRIBUTION IN VIEW OF THE VERY LIMITED PERIOD DURING WHICH THEY CAN BE SOLD BEFORE THEY ARE OUT OF DATE ; AT THE END OF THAT PERIOD , THE LENGTH OF WHICH VARIES ACCORDING TO THE SPECIFIC PUBLICATION IN QUESTION , NEWSPAPERS AND PERIODICALS HAVE PRACTICALLY NO VALUE . TO THOSE FACTORS MUST BE ADDED THE HETEROGENEITY OF NEWSPAPERS AND PERIODICALS AND THE LACK OF ELASTICITY IN DEMAND SINCE EACH NEWSPAPER OR PERIODICAL HAS MORE OR LESS ITS OWN BODY OF CUSTOMERS .
42 THE GERMAN GOVERNMENT CONCLUDES THAT , FROM THE POINT OF VIEW OF COMPETITION , THE POSITION OF THE MARKET IN NEWSPAPERS AND PERIODICALS IS SO SPECIAL THAT IT IS NOT POSSIBLE TO APPLY TO IT WITHOUT MODIFICATION PRINCIPLES WHICH HAVE BEEN DEVELOPED IN COMPLETELY DIFFERENT CONTEXTS . IF THE POSSIBILITY OF FIXING PRICES FOR NEWSPAPERS AND PERIODICALS IS NOT ACCEPTED ANY EFFECTIVE DISTRIBUTION SYSTEM FOR SUCH PRODUCTS WOULD BE INCOMPATIBLE WITH THE RULES ON COMPETITION AND THE EFFECT ON THE DIVERSITY AND FREEDOM OF THE PRESS WOULD BE DISASTROUS . FROM THAT POINT OF VIEW IT IS NOT UNIMPORTANT TO NOTE THAT SYSTEMS OF FIXED PRICES IN RELATION TO THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS ARE ACCEPTED UNDER THE LEGISLATION OF MOST MEMBER STATES OR ARE OPERATED WITHOUT ENCOUNTERING ANY DIFFICULTIES .
43 IN THE COMMISSION ' S OPINION ANY PRICE-FIXING AGREEMENT CONSTITUTES , OF ITSELF , A RESTRICTION ON COMPETITION AND IS , AS SUCH , PROHIBITED BY ARTICLE 85 ( 1 ). THE COMMISSION DOES NOT DENY THAT NEWSPAPERS AND PERIODICALS AND THE WAY THEY ARE DISTRIBUTED HAVE SPECIAL CHARACTERISTICS BUT CONSIDERS THAT THESE CANNOT LEAD TO AN EXCLUSION OF SUCH PRODUCTS AND THEIR DISTRIBUTION FROM THE SCOPE OF ARTICLE 85 ( 1 ). ON THE CONTRARY , THOSE CHARACTERISTICS SHOULD BE PUT FORWARD BY THE UNDERTAKINGS RELYING UPON THEM IN THE CONTEXT OF AN APPLICATION FOR EXEMPTION UNDER ARTICLE 85 ( 3 ).
44 IT SHOULD BE OBSERVED IN THE FIRST PLACE THAT PROVISIONS WHICH FIX THE PRICES TO BE OBSERVED IN CONTRACTS WITH THIRD PARTIES CONSTITUTE , OF THEMSELVES , A RESTRICTION ON COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ) WHICH REFERS TO AGREEMENTS WHICH FIX SELLING PRICES AS AN EXAMPLE OF AN AGREEMENT PROHIBITED BY THE TREATY .
45 IN THOSE CIRCUMSTANCES , WHERE AN AGREEMENT WHICH ESTABLISHES A SELECTIVE DISTRIBUTION SYSTEM AND WHICH AFFECTS TRADE BETWEEN MEMBER STATES INCLUDES SUCH A PROVISION , AN EXEMPTION FROM THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ) OF THE EEC TREATY MAY ONLY BE GRANTED BY MEANS OF A DECISION ADOPTED BY THE COMMISSION IN THE CONDITIONS LAID DOWN BY ARTICLE 85 ( 3 ).
46 IF , IN SO FAR AS THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS IS CONCERNED , THE FIXING OF THE RETAIL PRICE BY PUBLISHERS CONSTITUTES THE SOLE MEANS OF SUPPORTING THE FINANCIAL BURDEN RESULTING FROM THE TAKING BACK OF UNSOLD COPIES AND IF THE LATTER PRACTICE CONSTITUTES THE SOLE METHOD BY WHICH A WIDE SELECTION OF NEWSPAPERS AND PERIODICALS CAN BE MADE AVAILABLE TO READERS , THE COMMISSION MUST TAKE ACCOUNT OF THOSE FACTORS WHEN EXAMINING AN AGREEMENT FOR THE PURPOSES OF ARTICLE 85 ( 3 ).
47 CONSEQUENTLY , THE ANSWER TO THE THIRD QUESTION MUST BE THAT THE REQUIREMENT , IN THE FRAMEWORK OF A SELECTIVE DISTRIBUTION SYSTEM FOR NEWSPAPERS AND PERIODICALS WHICH AFFECTS TRADE BETWEEN MEMBER STATES , THAT FIXED PRICES MUST BE RESPECTED RENDERS THAT SYSTEM INCOMPATIBLE WITH ARTICLE 85 ( 1 ) OF THE TREATY . HOWEVER , THE COMMISSION MAY , IN CONSIDERING AN APPLICATION FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), EXAMINE WHETHER , IN A PARTICULAR CASE , SUCH AN ELEMENT OF A DISTRIBUTION SYSTEM MAY BE JUSTIFIED .