EUR-Lex - 31973D0323 - EN
31973D0323
European Union
§ ARTICLE 85
ARTICLE 85 ( 3 ) PROVIDES THAT THE PROVISIONS OF PARAGRAPH 1 MAY BE DECLARED INAPPLICABLE IN THE CASE OF ANY AGREEMENT BETWEEN UNDERTAKINGS WHICH CONTRIBUTES TO IMPROVING THE PRODUCTION OR DISTRIBUTION OF GOODS OR TO PROMOTING TECHNICAL OR ECONOMIC PROGRESS , WHILE ALLOWING CONSUMERS A FAIR SHARE OF THE RESULTING BENEFIT , AND WHICH DOES NOT :
( A ) IMPOSE ON THE UNDERTAKINGS CONCERNED RESTRICTIONS WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THESE OBJECTIVES ;
( B ) AFFORD SUCH UNDERTAKINGS THE POSSIBILITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION .
1 . THE AGREEMENT DOES NOT SATISFY THE PROVISIONS OF COMMISSION REGULATION ( EEC ) NO 2779/72 ( 3 ) OF 21 DECEMBER 1972 ON THE APPLICATION OF ARTICLE 85 ( 3 ) TO CATEGORIES OF SPECIALIZATION AGREEMENTS , SINCE THERE IS NO RECIPROCAL COMMITMENT BY EACH OF THE PARTIES TO REFRAIN , FOR THE DURATION OF THE AGREEMENT , FROM THE MANUFACTURE OF CERTAIN PRODUCTS IN ORDER TO ENTRUST IT TO ITS PARTNER , BUT ONLY THE UNILATERAL COMMITMENT BY PRYM TO CEASE ITS PRODUCTION OF NEEDLES AND TRANSFER IT TO BEKA .
NEVERTHELESS , THE CONCENTRATION OF MANUFACTURING AGREED ON BY PRYM AND BEKA HAS , FROM THE POINT OF VIEW OF THE IMPROVEMENT OF PRODUCTION , FAVOURABLE EFFECTS ANALOGOUS TO THOSE OF SPECIALIZATION ; IT CAUSES AN INCREASE OF AT LEAST 50 PER CENT IN THE QUANTITY OF NEEDLES TO BE MANUFACTURED IN THE EUPEN FACTORY , WHICH MAKES IT POSSIBLE TO MAKE MORE INTENSIVE USE OF THE EXISTING PLANT AND TO INTRODUCE PRODUCTION-LINE MANUFACTURE .
THIS RATIONALIZATION OF PRODUCTION HAS IN PARTICULAR MADE IT POSSIBLE TO REDUCE THE VERY LARGE PROPORTION OF LABOUR COSTS IN THE PRODUCER'S COST PRICE . THE PRODUCER'S COST PRICE OF " STANDARD " QUALITY NEEDLES , WHICH FEEL BY SOME 20 PER CENT IN 1970 AFTER THE CONCENTRATION OF PRODUCTION AT EUPEN , WAS STILL LOWER AT THE END OF 1972 THAN IN 1969 IN SPITE OF THE INCREASES IN WAGES AND IN THE COST OF RAW MATERIALS WHICH HAD OCCURRED DURING THOSE FOUR YEARS . THE INTRODUCTION OF MECHANIZED PRODUCTION-LINE MANUFACTURE WITH INCREASED PRODUCTIVE CAPACITY ALSO MAKES IT POSSIBLE TO MANUFACTURE ARTICLES OF A MORE EVEN QUALITY .
2 . THE AGREEMENT ALLOWS CONSUMERS A FAIR SHARE OF THE BENEFIT RESULTING FROM IT , AS IT MUST BE SUPPOSED THAT BECAUSE OF THE PRESSURE OF COMPETITION EXISTING ON THE NEEDLE MARKET THE ADVANTAGES RESULTING FROM RATIONALIZATION WILL BE PASSED ON TO CONSUMERS .
3 . THE AGREEMENT DOES NOT CONTAIN RESTRICTIONS WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THE SAID ADVANTAGES . THE FAVOURABLE EFFECTS OF THE AGREEMENT ARE DUE ESSENTIALLY TO THE IMPROVEMENT IN PRODUCTIVITY RESULTING FROM A MORE INTENSIVE UTILIZATION OF PRODUCTIVE CAPACITY , AND THAT MORE INTENSIVE UTILIZATION IS ONLY POSSIBLE IF THE QUANTITIES OF NEEDLES TO BE MANUFACTURED ARE , AND ARE TO REMAIN , CONSIDERABLY LARGER THAN BEFORE . THAT BEING SO , IT IS ESSENTIAL THAT PRYM SHOULD ENTER INTO A COMMITMENT FOR A LONG PERIOD , NOT ONLY TO CEASE MANUFACTURE , BUT ALSO TO PURCHASE ALL ITS REQUIREMENTS OF NEEDLES FOR DOMESTIC SEWING MACHINES FROM BEKA , SO AS TO PROVIDE A GUARANTEE FOR AN INCREASED OUTPUT BY THE LATTER .
THE LONG-TERM COMMITMENT BY PRYM TO OBTAIN ITS SUPPLIES EXCLUSIVELY FROM BEKA THUS REPRESENTS AN INDISPENSABLE RESTRICTION IF THE FAVOURABLE EFFECTS OF THE AGREEMENTS ARE TO BE ACHIEVED AND , MOREOVER , MAINTAINED . THAT COMMITMENT , MOREOVER , DOES NOT GO BEYOND WHAT IS STRICTLY NECESSARY , SINCE IT ALLOWS PRYM THE POSSIBILITY , IN THE EVENT OF BEKA BEING UNABLE TO MEET ITS COMMITMENTS , OF BUYING FROM OTHER SOURCES AND SINCE , IN ANY CASE , PRYM GETS THE BENEFIT OF PREFERENTIAL PRICES .
4 . THE AGREEMENT DOES NOT AFFORD THE PARTIES THE POSSIBILITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION . IN THE AMENDED VERSION IN FORCE SINCE 10 OCTOBER 1972 THE AGREEMENT NO LONGER PREVENTS BEKA AND PRYM FROM COMPETING WITH EACH OTHER ON ANY EEC MARKET , WHETHER GEOGRAPHIC OR SECTORAL . BOTH UNDERTAKINGS REST EXPOSED TO THE KEEN COMPETITION FROM OTHER , SOMETIMES LARGER , PRODUCERS WHO APPEAR AS SELLERS WITHIN THE EEC .
5 . ALL THE CONDITIONS NECESSARY FOR THE APPLICATION OF ARTICLE 85 ( 3 ) OF THE TREATY ARE THUS FULFILLED .
IV
IN THE FORM IN WHICH IT WAS IN FORCE WHEN NOTIFIED TO THE COMMISSION ON 18 MAY 1972 , THE AGREEMENT DID NOT FULFIL THE CONDITIONS NECESSARY FOR THE APPLICATION OF ARTICLE 85 ( 3 ) , BECAUSE ITS ARTICLE 4 CONTAINED CLAUSES WHICH HAD AS THEIR OBJECT THE SHARING OF CUSTOMERS BETWEEN THE TWO PARTIES WITHIN THE COMMON MARKET .
IN SO FAR AS THEY RELATED TO THE EEC MARKET , THOSE CLAUSES WERE ANNULLED BY THE PARTIES CONCERNED ON 10 OCTOBER 1972 ; IT IS THUS ONLY AS FROM THAT DATE THAT THE CONDITIONS NECESSARY FOR THE APPLICATION OF ARTICLE 85 ( 3 ) HAVE BEEN FULFILLED AND A DECISION PURSUANT TO ARTICLE 6 ( 1 ) OF REGULATION NO 17 CAN TAKE EFFECT .
IN SPECIFYING , AS PROVIDED IN ARTICLE 8 ( 1 ) OF REGULATION 17 , THE PERIOD FOR WHICH SUCH A DECISION SHALL APPLY , ACCOUNT SHOULD BE TAKEN OF THE FACT THAT THE FAVOURABLE EFFECTS OF THE AGREEMENT ARE DEPENDENT ON LONG-TERM COLLABORATION BETWEEN THE TWO PARTIES ,
HAS ADOPTED THIS DECISION :
§ ARTICLE 1
ARTICLE 1
THE APPLICATION FOR NEGATIVE CLEARANCE IN RESPECT OF THEIR SUPPLY AGREEMENT OF 11 AUGUST 1969 , WHICH WAS SUBMITTED ON 9 APRIL 1970 BY THE UNDERTAKINGS WILLIAM PRYM-WERKE KG OF STOLBERG AND SA MANUFACTURE BELGE D'AIGUILLES BEKA OF EUPEN , IS REJECTED .
§ ARTICLE 2
ARTICLE 2
PURSUANT TO ARTICLE 85 ( 3 ) , ARTICLE 85 ( 1 ) OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY IS DECLARED INAPPLICABLE TO THE AGREEMENT REFERRED TO IN ARTICLE 1 IN ITS VERSION MODIFIED ON 10 OCTOBER 1972 .
§ ARTICLE 3
ARTICLE 3
THE DECLARATION IN ARTICLE 2 TAKES EFFECT FROM 10 OCTOBER 1972 ; IT SHALL APPLY UNTIL 31 DECEMBER 1984 .
§ ARTICLE 4
ARTICLE 4
THIS DECISION IS ADDRESSED TO THE UNDERTAKINGS WILLIAM PRYM-WERKE KG , ZWEIFALLERSTRASSE 5/7 , STOLBERG/RHINELAND ( GERMANY ) , AND SA MANUFACTURE BELGE D'AIGUILLES BEKA , HUETTE 77 , EUPEN ( BELGIUM ) .
DONE AT BRUSSELS , 8 OCTOBER 1973 .
FOR THE COMMISSION
THE PRESIDENT
FRANCAIS-XAVIER ORTOLI
Metadata
- Type
- Afgørelse
- År
- 1973
- Ikrafttrædelsesdato
- 1. januar 1970