EUR-Lex - 31976D0915 - EN

Article 85 (3) is therefore inapplicable to the present case.

IV. Applicability of Article 15 (2) (a) of Regulation No 17 20. Under Article 15 (2) (a) of Regulation No 17, the Commission may by decision impose on undertakings fines of from 1 000 to 1 000 000 units of account, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently, they infringe Article 85 (1) of the Treaty. In fixing the amount of the fine, regard must be had both to the gravity and to the duration of the infringement.

1. Miller has intentially infringed Article 85 (1). It knew and intended that its prohibitions on export would prevent its customers from competing in the goods in question in other Community countries. Miller was also aware that export prohibitions were contrary to Community law, or at least chose to ignore any doubt on this question. So much is evident from the reference to EEC Regulations in the formulation of the export prohibition, which however never came into force, in the agreement with the Dutch sole distributor and from a statement by the manager of the company, made in the course of the hearing, that he knew that such a prohibition was not permitted. Furthermore it has been well known since the Decision of the Commission of 23 September 1964 in the Grundig/Consten Case (1) and the judgment of the Court of Justice of 13 July 1966 in Case Nos 56 and 58/64, Grundig/Consten (2), that prohibitions on export constitute a serious infringement of Article 85 of the EEC Treaty. Furthermore, in its Decision of 22 December 1972 in the WEA-Filipacchi Music SA Case (3), the Commission found that export prohibitions on records produced by that undertaking were (1)OJ No 161, 20.10.1964, p. 2545/64. (2)(1966) ECR 299. (3)OJ No L 303, 31.12.1972, p. 52.

infringements of Article 85 (1) of the EEC Treaty, and it fined the undertaking for having imposed the same.

1. In fixing the amount of the fine the gravity and duration of the infringement as well as the position of the undertaking should be taken into account. (a) Export prohibitions constitute a serious infringement of Article 85 of the EEC Treaty since they prevent the creation of a single market.

The export prohibitions imposed by Miller International Schallplatten GmbH affected large numbers of retailers in the common market. Miller was, however, aware of instances of exports being made to other Member States and did not apply sanctions.

(b) Miller imposed the export bans under its terms and conditions of sale in about 1970 and in its exclusive dealing agreements of 11 June 1971 with its French distributor. It enforced them until May 1975. The infringements thus continued over a considerable length of time.

(c) Miller is a medium-sized firm which, although belonging to the American MCA group, does not itself have a very high turnover.

1. In the light of these considerations the Commission considers that Miller should be fined 70 000 units of account,

Article 1

The export prohibitions on recordings by Miller International Schallplatten GmbH contained, until 7 May 1975, in the exclusive dealing agreement concluded by that undertaking on 11 June 1971, in its terms and conditions of sale (domestic market) operating until 31 July 1974 and in its terms and conditions of sale and payment in force from 1 August 1974 constituted infringements of Article 85 (1) of the Treaty establishing the European Economic Community.

Article 2

A fine of 70 000 (seventy thousand) units of account, being 256 200 (two hundred and fifty six thousand two hundred) German marks is imposed on Miller International Schallplatten GmbH in respect of the infringements referred to in Article 1. The fine is to be paid within three months of notification of this Decision.

Article 3

This Decision shall be enforceable pursuant to Article 192 of the Treaty establishing the European Economic Community.

Article 4

This Decision is addressed to Miller International Schallplatten GmbH, Justus von Liebig-Ring 2-4, Quickborn.

Done at Brussels, 1 December 1976.

For the Commission

R. VOUEL

Member of the Commission