EUR-Lex - 31975D0781 - EN

The scope of the appraisal is not affected by the consideration that the Bomée conditions have been modified since 19 December 1974 in order to permit the parties to purchase the products concerned in other Member States for resale. The amendment of the Bomée product description which came into force on 25 August 1975 and which limited this description to those products marketed in the Netherlands, served only to clarify the initial easing of the conditions. Neither modification takes the 1974 Bomée conditions out of the scope of the prohibition contained in Article 85 (1). Serious obstacles still exist, particularly with regard to the marketing in the Netherlands of those products which are imported by the members themselves. These products may not be distributed freely by importers, wholesalers and retailers (the traders on the relevant market), but only through the prescribed distribution channels. Importers are not free to deliver to any wholesaler or retailer and neither the member wholesalers nor retailers may sell their merchandise within their respective groups. Therefore the means by which imported products penetrate the Dutch market are not the result of individual decisions by the parties on the different distribution levels, but are influenced by the restrictive agreements which the parties have concluded with their competitors.

The restrictive clauses referred to above may substantially affect trade between Member States within the meaning of Article 85 (1) of the Treaty in that they apply to goods which are mainly imported from other Member States and sold in the Netherlands. Trade flows may therefore be deflected from their natural course and trade between Member States affected (1).

They further have the effect of consolidating the division of the common market into national markets, which goes against the economic interpenetration aimed at by the Treaty, in that they make it difficult for manufacturers and dealers in other Member States to do business on the Dutch market (2).

In view of the size and number of the firms which belong to Bomée-Stichting, of the large number of dealers who accept the Bomée conditions, and of the range and reputation of the branded articles to which the conditions apply, the restrictive clauses discussed above have a substantial effect on trade between Member States in a manner detrimental to the creation of a single market.

Although the adverse effect upon trade between Member States is mitigated by the opportunity, first given on 19 December 1974 and later confirmed on 25 August 1975, for the wholesalers and retailers concerned to obtain supplies direct from other Member States, this relaxation of the rules does not compensate for the collective and cumulative effect of the restrictions referred to above, to which the admission of the products imported into the Netherlands by the members themselves remained subject.

Clause 10 (1), (3) and (5) and Clause 11 of the 1974 Bomée conditions accordingly fall within the scope of Article 85 (1) of the Treaty establishing the EEC.

III. Applicability of Article 85 (3) of the EEC Treaty

Under Article 85 (3), the provisions of Article 85 (1) may be declared inapplicable in the case of any agreement between undertakings or any decision by associations of 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.

The 1974 Bomée conditions cannot be exempted under Article 85 (3) as they do not satisfy these tests.

First, they do not contribute in any way to improving the production or distribution of goods or to promoting technical or economic progress. Analysis of the restrictive clauses and the explanation supplied by representatives of the association have made it clear that the principal aim of the Bomée system is to give the member firms, through a set of collective measures, the assurance that the largest possible share of sales of the relevant products in the Netherlands will be handled by them. The restrictions consisting of exclusive sale and purchasing commitments do not contribute to improving the distribution of the relevant product. These restrictions, on the contrary, provide a market protection arrangement so that other dealers are excluded from a distribution network which helps to ensure that as far as possible the production and import of Bomée articles in the Netherlands is reserved for Bomée members.

Furthermore, virtually all licensed manufacturers and concessionaire importers of well-know branded products in the Netherlands belong to Bomée-Stichting. Outsiders are too few and too small to exert any real influence on the market, especially as the products they are offering are not so widely distributed as Bomée articles. In any event competition should exist not only between member and non-member dealers selling articles under different brands, but also between different dealers in articles of the same brand, and, as has been seen, it is this latter form of competition that the Bomée system sets out to eliminate. (1)See decision by the European Court of Justice on 15 May 1975 in Case No 71/74, FRUBO. (2)See decision by the European Court of Justice of 17 October 1972 in the Case No 8/72, Vereeniging van Cementhandelaren.

Accordingly, the restrictive clauses in the 1974 version of the Bomée conditions of sale do not qualify for exemption under Article 85 (3) of the EEC Treaty.

IV. Applicability of Article 3 (1) of Council Regulation No 17