Abstract
The primary purpose of the present chapter is to indicate, theoretically and practically, the factors on which the assessment of prohibited arrangements with foreign elements is made in Community law.
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References
Compare Bellamy, Child and Morris, Common Market Law of Competition Sec. 2–41 (2nd ed. 1978); Barounos, Hall and James, EEC Antitrust Law: Principles and Practice 27 (1975); A. Deringer, The Competition Law of the European Economic Community sec. 136A (CCH ed. 1968).
See, for example, Second Report on Competition Policy points 54–57.
For example: gas and electricity (see Second Report on Competition Policy points 58–60, 65–68); television services (see Sixth Report on Competition Policy point 163). Military equipment is excluded under Art. 223.
For example, notwithstanding Reg. 26/62 of the Council of 4 April 1962, J.O. 1962, 993; O.J. (Special Edition 1959–1962) p.129, Art. 2, anticompetitive agreements that affect interstate trade in agricultural products may violate Art. 85(1) if they have not been oomncgrded by enterprises engaged in production of agricultural products, e.g. by manufacturers of machinery.
For references and enumeration see Bellamy, Child and Morris, supra note 1, at 47 in n.42; Oberdorfer, Gleiss and Hirsch, Common Market Cartel Law sec. 24 (CCH, 2nd ed. 1971); Deringer, supra note 1, at secs. 137, 138 and 183; D.L. McLachlam and D. Swann, Competition Policy in the European Community 175, at n. 9 (1967); R. Graupner, The Rules of Competition of the European Economic Community 14, at n.9 (1965). See also the following articles: Diets “Enforcement of Antitrust Laws in the EEC” 6 Int. Lawyer 747 (1972); Mok, “The Cartel Policy of the EEC Commission 1962–1967” 6 C.M.L.Rev.91 (1968).
See Case 56/65, La Technique Miniere v. Maschinenbau Ulm GmbH [1966] E.C.R. 249 (hereinafter cited as the “LTM Case”); Case 71/74 Nederlandse Vereninging voor de Fruit-en Froentenimporthandel and Nederlandse Bond van Brossiers in Zuidvruchten en ander Geimportèerd Fruit “Frubo” v. Commission [1975] E.C.R. 584 (hereinafter cited as the “FRUBO” Case“)
See for example: Duro-Dyne/Europair [1975] C.M.L.R. D226; Goodyear Italiana/Euram [1975] 1 C.M.L.R. D31.
See Cases 56 and 58/64, Consten S.A. and Grundig-Berkaufs GmbH v. Commission [1966] E.C.R. 341 (hereinafter cited as the “ConstenGrundig Case”); Cimbel [1973] C.M.L.R. D167.
See Consten-Grundiq Case 341–342, where the Court added that in determining whether trade between Member States was affected it is especially important to know whether the agreement is capable of jeopardising the freedom of interstate trade in such a manner as to prejudice the realization of the objectives of a single market between States. In other judgments the language also implies a requirement for adverse effect, for example: LTM Case 251; Case 23/67, Brasserie de Haecht v. Wilkin (No. 1)[1967] E.C.R. 415 (hereinafter cited as the “Brasserie de Haecht Case (No.1)”; Case 5/69, Wilk v. Vervaecke [1969] E.C.R. 302 (hereinafter cited as the “Völk Vervaecke Case”); Case 1/71, Cadillon S.A. v. Firma Höss Maschinenbau KG [19711 E.C.R. hereinafter cited as the (“Cadillion Case”).
Following rulings of the Court, as mentioned in note 10 above, the Commission has not consistently adhered to its original formula. See e.g. Cobelaz (No.1)(Usinesde Synthèse)[1968] C.M.L.R. D45; SEIFA J.0. 1968, L173/8.
Cf. Columbia Law School Project on European legal Institutions: The Law of the European Economic Community vol. 2, sec. 85.15(e) at p.3–106 (Seit and Herzog eds. 1976)(hereinafter cited as “Surit and Herzog”).
See B. Goldman, European Commercial Law 155–156 (1973). See also Oberdorfer, Gleiss and Hirsch, supra note 6, at sec. 27, who argue that the jurisdictional conception embodied in the condition “affect trade between Member States” must be restricted only to a pertinent description of the area of protection and not to an approval of the theory on the competence of the Community, e.g. the Community has to be allowed jurisdiction for granting negative clearance which presupposes jurisdiction over the matter in cases where the prerequisites of Art. 85 are not met.
Commercial Solvents Case 252–253. See also ABG Oil Companies Operating in the Nederlands 119771 2 C.M.L.R. Dl.
See Bellamy, Child and Morris, supra note 1, at 47 in n.44. The note mentions, for support of the writers’ view, the Vacuum Interrupters Decision ([1977] 1 C.M.L.R. D67)where the Commission treated a change in the structure of competition as itself an “effect” on trade between Member States. See also Smit and Herzog, supra note 13 at sec. 85.18 in pp.3–111 to 3–112.
At p.294, para. 201. However, later the Advocate-General Reischl in his opinion in the Hugin Cash Register Case opposed such an interpretation; in his view the elimination of a competitor, albeit as a repercussion on the pattern of competition in the Common Market, does not per se affect trade between Member States (see p.1919).
J. Magret, Le Droit de la Communaute Économique Éuropéenne vol. 1 - Concurrence 31 (by J. Magret, J.V. Louis, D. Vignes and M. Waelbroeck 1972); the translation in the text appears in Barounos, Hall and James, supra note 1, at 43.
The Communication was published in J.0. 1968, C.75/3; (1968) C.M.L.R. D5. It applies to the permitted forms of cooperation irrespective of the size of the undertakings (see also Sec. I, 4th para., of the Communication which applies to other forms of cooperation not covered by the Communication).
Commission Notice of 27 May 1970, Concerning Agreements of Minor Importance Which do not Fall under Art. 85(1) of the Treaty Establishing the EEC, 0.J. 1970, C63/1; [1970] C.M.L.R. D15. This notice was replaced by a notice in 19 December 1977, 0.J. 1977, C313/3; [1978] 3 C.M.L.R. 648.
See Case 19/77, Miller International Schallplatten GmbH v. Commission [19781 E.C.R. 157–158.
V. Korah, An Introduction Guide to EEC Competition Law and Practice 19 (1978).
See for example, Alliance de Constructeurs Francais de Machines-Outils [1968) C.M.L.R. D23.
See for example, the Bbquelin Case observations submitted to the Court (the Commission), 956, and opinion of the Advocate-General p.361.
See, for example, Re GEMA (no. 1)[1971] C.M.L.R. D35; the Continental Can Decision; Sugar Cartel [1973 C.M.L.R. D65.
See similar classification in Ake Skidld “Antitrust Problems in Connection With Dealings With the Common Market Countries” in the Irternational Bar Association, Ninth Conference Report 192–206 (Edinburgh, 1962).
A. Bulloch & Co. and Others v. the Distillers Company Ltd. [1978] 1 C.M.L.R. 415, at paras. 72–73.
See Opinion Governing the Applicability of the Treaty of Rome the Importation of Japanese Products Into the Community, J.O. 1972, C 111/13.
See Commission’s reply to 0.Q. 35/73 concerning agreements between producers of electronic equipment in the Community and Japan; annex to 0.J. 1973, 162/31.
See Second Report on Competition Policy point 17 (at p.26); Third Report on Competition Policy point 20 (at pp.27–28); European Parliament, Doc. 290/74, 1974–75, Report drawn up on behalf of the Committee on Economic and Monetary Affairs on the Third Report of the Commission of the European Communities on Competition Policy (Doc. 118/74), Explanatory Statement, point 9. See also Commission’s reply to W.Q. 295/77, 0.J. 1977 C 270/10.
Second General Report on the Activities of the Communities: 1968 (February 1969), point 28 at p.47.
The principles applicable to trademark rights of common origin which have evolved for the Common Market were formulated in Case 192/73 Van Zuylen Freres v. Hag AG [1974] E.C.R. 745: “to prohibit the marketing in one Member State of a product legally bearing a trademark in another Member State for the sole reason that an identical trademark, having the same origin, exists in the first is incompatible with the provisions for the free movement of goods within the Common Market”.
This conclusion is not invalidated by the provisions of the Treaty relating to the free circulation of goods coming from non-Member States (Arts. 9(2) and 10), nor by the rules on the common commercial policy (Art. 110 et seq). But the Court did not consider the question of whether these principles also apply where the trademark rights are not held by the same person in all the Member States. Here the exercise of the trademark right would tend, in the Commission’s opinion, to divide the Common Market into separate national markets (see Sixth Report on Competition Policy point 24 (at p.26).
Minnesota Mining & Manufacturinq Company v. Geerpres Europe Ltd. (in the High Court of Justice; Chancery Division)[19731 C.M.L.R. 259.
See H. Kronstein, The Law of International Cartels 41 (1973).
See OECD, Committee of Experts on Restrictive Business Practices, Restrictive Business Practices of Multinational Enterprises, sec. 57 (1977).
Transocean Marine Paint Association f1967) C.M.L.R. D9; [19741 1 C.M.L.R. D11; `1975) 2 C.M.L.R. D75. See also Case 17/74, Transocean Marine Paint Association v. Commission [1974] E.C.R. 1063.
J. Rahl, Common Market and American Antitrust; Overlap and Conflict 106 (1970).
Jacquemin “Application to Foreign Firms of European Rules of Competition” 19 Antitrust Bulletin 159 (1974).
EMI/CBS 906, at para. 25. See also elaboration on this point in the Cases in Hay and Oldekop “EMI/CBS and the Rest of the World; Trade Mark Rights and the European Communities” 25 A.J.C.L. 150–151 (1977).
OECD, Committee of Experts on Restricitive Business Practices Export Cartels sec. 140 (1974).
Draft Regulation (EEC) of the Council on the Control of Concentration Between Undertakings, 0.J. 1973, C 92/1; [1973] C.M.L.R. D205. This draft was submitted to the Council by the Commission on 20 July 1973.
See for example Joliet, R. The Rule of Reason in Antitrust Law: American, German and Common Market Laws in Comparative Perspective (1967).
See H. Hermann and C. Jones, Fair Trading in Europe 60–61 (1977).
First General Report on the Activities of the Comm nitiß (feb. 1968), point 48. See also explanations in Third Report on Compdition Policy, points 61–63.
Commission Decision published in 0.J. 1972, L182/24. See Second Report on Competition Policy point 37.
Treaty of 22nd July, 1972, Arts. 23, 27. See also Art. 20.
Treaty of 22nd July, 1972, Arts. 23, 27. See also Art. 20.
Treaty of 22nd July, 1972, Arts, 23, 27. See also Art. 20.
Treaty of 22nd July, 1972, Arts. 26, 30. See also Art. 23.
Treaty of 22nd July, 1972, Arts. 24, 28. See also Art. 21.
Treaty of 14th May,1973, Arts. 23, 27. See also Art. 20.
Treaty of 5th October, 1973, Arts. 23, 27. See also Art. 20.
Treaty of 22nd July, 1972, Art. 26. See also Art. 30.
Treaty of 11th May, 1975, Art. 12. See also Art. 16.
It is not clear from the text if the free trade agreements also refer to public enterprises, since they are not mentioned specifically as in the Treaty of Rome (Art. 90), or the Stockholm Convention which established the ERTA (Art. 14(2)).
Cf. Rom “Restrictive Business Practices in EEC Agreements With Less Developed Countries ” 12 J.W.T.L. 41 (1978).
Information provided to the writer by the Commission, updated to January 1980.
This was confirmed in a private interview with Mr. J. Temple-Lang, Legal Advisor to the EEC Commission, Brussels, 2nd October, 1979.
Bellamy, Child and Morris, supra note 1, at sec. 2–50. The authors refer to the following cases: Case 181/73, Haegeman Sprl v. Belgium [1974] E.C.R. 449; Case 87/75 Bresciani v. Administrazione Italiana Delle Finanze [1976] E.C.R. 129; Case 51/75, EMI%CBS [1976] E.C.R. 847, paras. 18–19.
See March Hunnings “Enforceability of the EEC-EFTA Free Trade Agreements” 2 Eur. L. Rev. 173–179 (1977).
Waelbroeck “Enforceability of the Eft-EFTA Free Trade Agreements: A Reply” 3 Eur. L. Rev. 27–31 (1978). There was also a rejoinder by March Hunnings in 3 Eur. L. Rev. 287 (1978).
The Swiss Supreme Court Proceedings were reported in [1978] 3 C.M.L.R. 480.
Seeibid. at 486, para 10. Another attempt to argue that the competition clauses in the FTA (in this case the EEC-Sweden Agreement) are self-executing was made in Sweden, but the case was later settled between the parties and the proceeding before the civil courts and before the Antitrust Commissioner have been withdrawn (see Hans Hauenschild Chemische Fabrik KB v. AB Kemiska Bygqnadsprodukter [1976] 1 C.M.L.R. 09).
See European Parliament Debates, January 12, 1977, at pp.109 and 110.
However, we have been informed that following a bill which was introduced to the Swiss Parliament on 25th September, 1978, some changes in the rules regarding secrecy are now proposed in order to make the law compatible with the Free Trade Agreement concerned. See Rapport Concernant le Project de Revision de la Loi sur les Cartels of 20.12.78 (points 14.33.4, at pp.53–55).
March Hunnings, supra note 196, at 171. March Hunnings further remarks (in n.24) that there is no mention of the Free Trade Agreement in the Commission decision or even that Hoffmann-La Roche was situated in a country having a Free Trade Agreement with the EEC. In particular the Commission did not find that there was any effect on “trade between the Community and Switzerland”.
See Sixth Report on Competition Policy point 147.
See the SABA Decision at para. 11; see also para. 35.
Treaty of 19th December, 1972, with Cyprus.
Treaty of 5th December, 1970, with Malta.
Interim Agreement with Tunisia of 25th April, 1976.
Interim Agreement with Algeria of 26th April, 1976.
Interim Agreement with Morocco of 27th April, 1976.
Treaty of 9th July, 1961 with Greece.
Treaty of 12th September, 1963 with Turkey.
We have no knowledge of specific provisions worked out in line with the framework of those clauses in the treaties.
See Agreement for Economic and Commercial Cooperation with Canada of July, 1976.
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Barack, B. (1981). Types of Prohibited Arrangements with foreign elements and the various factors for their Assessment. In: The Application of the Competition Rules (Antitrust Law) of the European Economic Community to Enterprises and Arrangements External to the Common Market. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4482-9_3
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