EUR-Lex - 31976D0249 - EN
31976D0249
European Union
§ ARTICLE 85
ARTICLE 85 ( 1 ) OF THE EEC TREATY PROHIBITS AS INCOMPATIBLE WITH THE COMMON MARKET ALL AGREEMENTS BETWEEN UNDERTAKINGS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES AND WHICH HAVE AS THEIR OBJECT OR EFFECT THE PREVENTION , OR DISTORTION OF COMPETITION WITHIN THE COMMON MARKET .
THE AGREEMENT BETWEEN BAYER , HOECHST , GELSENBERG AND NUKEM IS SUCH AN AGREEMENT , FOR :
1 . THE OBJECT AND EFFECT OF THE AGREEMENT IS TO AFFECT COMPETITION BETWEEN THE PARTIES IN THE SUPPLY OF REPROCESSING SERVICES IN THAT THE PARTIES UNDERTAKE NOT TO OPERATE IN THIS FIELD EXCEPT THROUGH THEIR JOINT SUBSIDIARY . IT IS TRUE THAT THE PARTIES HAVE NOT HITHERTO BEEN EFFECTIVE COMPETITORS ON THIS MARKET , SINCE NONE OF THEM INDIVIDUALLY SUPPLIES REPROCESSING SERVICES ; THEIR ONLY CONNECTIONS WITH THIS FIELD ARE THEIR EQUAL SHAREHOLDINGS IN GWK ( GESELLSCHAFT ZUR WIEDERAUFARBEITUNG VON KERNBRENNSTOFFEN ) , WHICH OPERATES A PILOT PLANT WITH A 40 METRIC TONS / A CAPACITY AT KARLSRUHE ; HOWEVER , THE FACT THAT THEY ALL POSSESS REPROCESSING TECHNOLOGY MAKES THEM FROM NOW ON POTENTIAL COMPETITORS .
2 . THE AGREEMENT MAY AFFECT TRADE BETWEEN MEMBER STATES IN VIEW OF THE STATUS OF THE PARTIES TO THE AGREEMENT ( THEY COMPRISE ALL THE GERMAN FIRMS POSSESSING REPROCESSING TECHNOLOGY ) AND OF THE SCALE OF THE INVESTMENTS INVOLVED ( THE CAPACITY OF THE PROPOSED PLANT WILL , BY THE TIME IT GOES ON STREAM , EXCEED GERMANY'S DOMESTIC DEMAND AND THIS COLLECTIVE TENDERING BY THE GERMAN FIRMS WILL AFFECT OTHER COUNTRIES ) AS WELL AS BECAUSE OF THE INTENTION EXPRESSED IN THE AGREEMENT OF LINKING WITH FURTHER PARTIES ( KEWA IS A PARTY TO THE URG AGREEMENT , WHICH ORGANIZES REPROCESSING SERVICES AT INTERNATIONAL LEVEL ) .
III
UNDER ARTICLE 85 ( 3 ) , THE PROVISIONS OF ARTICLE 85 ( 1 ) MAY BE DECLARED INAPPLICABLE IN THE CASE OF ANY AGREEMENT 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 AGREEMENT BETWEEN BAYER , HOECHST , GELSENBERG AND NUKEM , IS SUCH AN AGREEMENT FOR :
1 . THE AGREEMENT CONTRIBUTES TO IMPROVING THE PRODUCTION AND DISTRIBUTION OF REPROCESSING SERVICES AND TO PROMOTING TECHNICAL AND ECONOMIC PROGRESS .
THE AGREEMENT ENABLES THE PARTIES RAPIDLY TO REACH A POSITION WHERE THEY CAN REPROCESS ON AN INDUSTRIAL SCALE , WHILE AT THE SAME TIME ALLOWING THEM TO RETAIN THEIR INTEREST IN A NEW INDUSTRY WHERE CONDITIONS DO NOT FAVOUR ISOLATED EFFORTS BY INDIVIDUAL FIRMS ; THE PARTIES ARE TO CONTINUE JOINT RESEARCH AND DEVELOPMENT INTO THE APPLICATION ON AN INDUSTRIAL SCALE AND IN PROFITABLE CONDITIONS OF THE TECHNICAL EXPERIENCE THEY HAVE ACQUIRED IN BUILDING AND OPERATING A PILOT PLANT .
2 . THE AGREEMENT ALLOWS CONSUMERS A FAIR SHARE OF THE RESULTING BENEFIT .
BY ENABLING THE PARTIES TO CONTINUE THEIR RESEARCH ACTIVITIES AND TRANSFER OF TECHNOLOGY , IT WILL HELP TO REDUCE COSTS AND TO GUARANTEE THE STABILITY OF REPROCESSING SERVICES ; IT THUS OPENS THE WAY TO AN EVENTUAL DROP IN PRICES CHARGED TO USERS , IN THIS CASE ELECTRICITY PRODUCERS . BY VIRTUE OF THE CONDITIONS AND OBLIGATIONS WHICH IT WILL IMPOSE ON THE PARTIES AND THROUGH ITS SUBSEQUENT SUPERVISION , THE COMMISSION WILL ENSURE THAT NO CONDUCT OF THE PARTIES CAN PREVENT USERS FROM RECEIVING THEIR SHARE OF THE RESULTING BENEFIT . MOREOVER THE ELECTRICITY PRODUCERS WILL USE THEIR ECONOMIC STRENGTH TO EXERT PRESSURE IN THE SAME DIRECTION .
3 . THE AGREEMENT IMPOSES NO RESTRICTIONS OF COMPETITION WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THESE OBJECTIVES .
IT IS ESSENTIAL TO FORM A JOINT SUBSIDIARY , FOR THIS MAKES IT POSSIBLE TO CUT DOWN THE INVESTMENT NEEDED AND REDUCE THE ATTENDANT RISKS AND WITHOUT IT NONE OF THE PARTIES WOULD PERSIST IN TRYING TO MOVE RAPIDLY INTO LARGE-SCALE PRODUCTION .
THE CLAUSE REQUIRING EACH PARTY TO OPERATE IN THIS FIELD ONLY THROUGH THE JOINT SUBSIDIARY IS , ON ACCOUNT OF THE CIRCUMSTANCES OF THE AGREEMENT , A NECESSARY CONSEQUENCE OF THE FORMATION OF THE SUBSIDIARY AND IS INDISPENSABLE AS A MEANS OF ENSURING THAT IT CAN WORK EFFECTIVELY .
4 . THE AGREEMENT , HAVING REGARD TO THE VERY SPECIAL NATURE OF THE MARKET AND TO THE STILL UNRESOLVED TECHNOLOGICAL PROBLEMS , DOES NOT AFFORD THE UNDERTAKINGS THE POSSIBILITY OF ELIMINATING COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 3 ) IN RESPECT OF A SUBSTANTIAL PART OF THE RELEVANT MARKET SINCE THE EXEMPTION WILL CEASE IN 1986 , WHICH MEANS THAT THE FIRMS ARE FACED WITH THE CERTAINTY OF BECOMING COMPETITORS AT THAT TIME AND ARE OBLIGED TO BEHAVE FROM NOW ON WITH THIS IN VIEW . MOREOVER , ONCE THE URG AGREEMENT EXPIRES ( IN 1986 AT THE LATEST ) , THERE WILL BE EFFECTIVE COMPETITION BETWEEN BRITISH NUCLEAR FUELS LTD , THE COMMISSARIAT A L'ENERGIE ATOMIQUE AND THE PARTNERS OF KEWA .
IV
1 . UNDER ARTICLE 6 ( 1 ) OF REGULATION N 17 , THE DECISION CAN HAVE EFFECT FROM 11 OCTOBER 1971 , THE DATE ON WHICH THE AGREEMENT WAS NOTIFIED .
2 . THE PERIOD OF VALIDITY OF THE DECISION TO BE FIXED UNDER ARTICLE 8 ( 1 ) OF REGULATION N 17 , MUST BE LONG ENOUGH TO ENABLE THE PARTIES TO PURSUE THEIR JOINT EFFORTS TOWARDS ATTAINING THE FAVOURABLE RESULT SOUGHT . THE PERIOD OF VALIDITY SHOULD THEREFORE BE FIXED AT 15 YEARS .
3 . UNDER ARTICLE 8 OF REGULATION N 17 , CONDITIONS AND OBLIGATIONS MAY BE ATTACHED TO THE DECISION AND THE COMMISSION MAY REVOKE OR AMEND ITS DECISION OR PROHIBIT SPECIFIED ACTS BY THE PARTIES WHERE THE PARTIES ABUSE THE EXEMPTION FROM THE PROVISIONS OF ARTICLE 85 ( 1 ) OF THE TREATY GRANTED BY THE DECISION .
THIS COMMISSION DECISION COVERS EXCLUSIVELY THE AGREEMENT AS IT IS ACTUALLY OPERATING AT THE PRESENT TIME . THE AUTHORIZATION DOES NOT COVER ANY DIRECT OR INDIRECT EXTENSION OF THE CURRENT SCOPE OF KEWA'S ACTIVITIES , WHICH IS THE REPROCESSING OF OXIDE NUCLEAR FUELS , OR THE EXTENSION OF THE AGREEMENT TO OTHER PARTIES .
FURTHERMORE , KEWA HAS AND WILL PROBABLY RETAIN FOR SEVERAL YEARS A VERY STRONG POSITION IN A SUBSTANTIAL PART OF THE COMMON MARKET . IT SHOULD THEREFORE BE REQUIRED TO SEND THE COMMISSION EACH YEAR COPIES OF ITS BALANCE SHEETS AND PROFIT AND LOSS ACCOUNTS ; THIS WILL ENABLE THE COMMISSION TO ENSURE THAT KEWA IS ALLOWING USERS A FAIR SHARE OF THE BENEFITS RESULTING FROM THE AGREEMENT .
4 . THE OBSERVATIONS RECEIVED BY THE COMMISSION FROM INTERESTED THIRD PARTIES IN RESPONSE TO THE NOTICE PUBLISHED IN PURSUANCE OF ARTICLE 19 ( 3 ) OF REGULATION N 17 DREW ITS ATTENTION PRINCIPALLY TO THE NEED TO SHOW CLEARLY THAT ALL THE RESTRAINTS OF COMPETITION IN THE AGREEMENT WERE INDISPENSABLE AND TO ATTACH PRIOR CONDITIONS AND OBLIGATIONS TO THE DECISION SO AS TO ENSURE THAT A FAIR SHARE OF THE BENEFITS RESULTING FROM THE AGREEMENT ACCRUED TO USERS ; THE COMMISSION HAS PAID DUE ATTENTION TO THESE OBSERVATIONS ,
HAS ADOPTED THIS DECISION :
§ ARTICLE 1
ARTICLE 1
PURSUANT TO ARTICLE 85 ( 3 ) OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , THE PROVISIONS OF ARTICLE 85 ( 1 ) ARE DECLARED INAPPLICABLE TO THE AGREEMENT CONCLUDED ON 23 AUGUST 1971 BETWEEN FARBENFABRIKEN BAYER AG , LEVERKUSEN , FARBWERKE HOECHST AG , FRANKFURT-AM-MAIN , GELSENBERG AG , ESSEN , AND NUKEM GMBH , WOLFGANG-BEI-HANAU RELATING TO THE ESTABLISHMENT OF KERNBRENNSTOFF-WIEDERAUFARBEITUNGSGESELLSCHAFT MBH .
§ ARTICLE 2
ARTICLE 2
THE FOLLOWING CONDITIONS AND OBLIGATIONS ARE ATTACHED TO THIS DECISION :
_ THE DECISION COVERS EXCLUSIVELY THE AGREEMENT AS IT IS ACTUALLY OPERATING AT THE PRESENT TIME ; THE PARTIES SHALL COMMUNICATE TO THE COMMISSION , AS THE CASE ARISES , THEIR INTENTION TO EXTEND , DIRECTLY OR INDIRECTLY , THE PRESENT FIELD OF APPLICATION OF THE AGREEMENT , WHICH IS THE REPROCESSING OF OXIDE NUCLEAR FUELS , OR TO INCREASE THE NUMBER OF PARTIES TO THE AGREEMENT ;
_ EACH YEAR THE PARTIES SHALL SEND THE COMMISSION COPIES OF THE BALANCE SHEETS AND PROFIT AND LOSS ACCOUNTS OF KEWA .
§ ARTICLE 3
ARTICLE 3
THIS DECISION SHALL HAVE EFFECT FROM 11 OCTOBER 1971 AND SHALL APPLY UNTIL 31 DECEMBER 1986 .
IT IS ADDRESSED TO FARBENFABRIKEN BAYER AG , LEVERKUSEN , GERMANY ; FARBWERKE HOECHST AG , FRANKFURT-AM-MAIN , GERMANY ; GELSENBERG AG , ESSEN , GERMANY , AND NUKEM GMBH , WOLFGANG-BEI-HANAU GERMANY .
DONE AT BRUSSELS , 23 DECEMBER 1975 .
FOR THE COMMISSION
A . BORSCHETTE
MEMBER OF THE COMMISSION
Metadata
- Type
- Afgørelse
- År
- 1976
- Ikrafttrædelsesdato
- 1. januar 1970