EUR-Lex - 31977D0100 - EN

24 . THE PROHIBITION PREVENTING JUNGHANS DEALERS FROM EXPORTING FROM THE EEC ( SEE 10 ABOVE ) DOES NOT AT PRESENT HAVE ANY APPRECIABLE EFFECT ON COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ) . THIS PROHIBITION IS DESIGNED TO PROTECT DEALERS IN THIRD COUNTRIES FROM THEIR COMPETITORS IN THE COMMUNITY . IT HAS THE OBJECT OF RESTRICTING COMPETITION IN THIRD COUNTRIES .

THIS PROHIBITION HAS NO APPRECIABLE EFFECTS ON COMPETITION WITHIN THE COMMON MARKET AND TRADE BETWEEN MEMBER STATES . OWING TO THE DOUBLE DUTY BORNE BY GOODS TWICE CROSSING THE CUSTOMS FRONTIERS OF THE EUROPEAN COMMUNITIES , THERE IS NO INCENTIVE FOR JUNGHANS DEALERS AND CONSUMERS IN THE COMMUNITY TO BUY GOODS EXPORTED BY A JUNGHANS DEALER TO A THIRD COUNTRY .

HOWEVER , WHILE AT PRESENT THE COMMISSION SEES NO REASON TO OBJECT TO THIS EXPORT PROHIBITION , THIS WILL NOT NECESSARILY BE THE CASE AFTER 1 JULY 1977 AS REGARDS THOSE STATES WITH WHICH THE EEC HAS A FREE-TRADE AGREEMENT ( 2 ) . AFTER THAT DATE THERE WILL BE NO CUSTOMS DUTIES ON TRADE BETWEEN THE COMMUNITY AND THE COUNTRIES IN QUESTION .

25 . IT MAY FAIRLY BE SAID THAT THE OBLIGATION OF JUNGHANS SOLE DISTRIBUTORS IN BELGIUM AND DENMARK TO INFORM JUNGHANS OF ALL MATTERS RELATING TO SALES ( SEE 15 ABOVE ) DOES NOT NECESSARILY RESULT IN A RESTRICTION OF COMPETITION MERELY BECAUSE JUNGHANS THEREBY SEEKS TO LEARN OF THE MEANS WHEREBY JUNGHANS DEALERS COMPETE WITH EACH OTHER . PROVIDED THAT JUNGHANS MAKES NO RECOMMENDATIONS TO DESIST FROM CERTAIN TYPES OF SALE ( E.G . HORIZONTAL , DIRECT AND RETURN SALES ) OR TO CHARGE CERTAIN PRICES , AND OFFERS NEITHER INCENTIVES NOR THREATENS SANCTIONS , TO ACHIEVE THESE ENDS , IT CANNOT BE ASSUMED THAT SUCH CONDUCT HAS A RESTRICTIVE EFFECT ON COMPETITION .

26 . SINCE THE STANDARD DISTRIBUTION AGREEMENT FOR RETAILERS CONTAINS ONLY THE ABOVEMENTIONED RESTRICTIONS , WHICH ARE NOT WITHIN THE SCOPE OF ARTICLE 85 ( 1 ) ( SEE 21 TO 24 ABOVE ) , THE COMMISSION MAY , PURSUANT TO ARTICLE 2 OF REGULATION NO 17 , GRANT A NEGATIVE CLEARANCE IN RESPECT OF THAT AGREEMENT .

THE SAME CONSIDERATIONS APPLY TO THE STANDARD FORM AGREEMENTS FOR WHOLESALERS AND SOLE DISTRIBUTORS IN SO FAR AS THEY CONTAIN THE ABOVE PROVISIONS . A NEGATIVE CLEARANCE CANNOT HOWEVER BE GIVEN FOR THE " PROHIBITION ON CANVASSING " ( SEE 29 BELOW ) CONTAINED IN THESE AGREEMENTS .

PROVISIONS WITHIN THE SCOPE OF ARTICLE 85 ( 1 )

27 . THE AGREEMENTS CONCLUDED OR TO BE CONCLUDED BY JUNGHANS WITH ITS WHOLESALERS AND SOLE DISTRIBUTORS ALSO CONTAIN CLAUSES WHICH HAVE AS THEIR OBJECT OR EFFECT THE RESTRICTION OR DISTORTION OF COMPETITION WITHIN THE COMMON MARKET AND WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES .

28 . IN THE EXCLUSIVE DEALING AGREEMENTS , JUNGHANS HAS UNDERTAKEN NOT TO SELL GOODS COVERED BY THE AGREEMENT FOR RESALE WITHIN A DETERMINED TERRITORY IN THE COMMON MARKET TO ANY PERSON OTHER THAN THE SOLE DISTRIBUTOR OR WHOLESALER FOR THAT TERRITORY . THIS PROVISION AND THE OBLIGATION IMPOSED ON SOLE DISTRIBUTORS NOT TO SELL COMPETING PRODUCTS , APART FROM CERTAIN SPECIFIED MAKES OR ITEMS ( SEE 14 ABOVE ) CONSTITUTE RESTRICTIONS OF COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ) AND MAY AFFECT TRADE BETWEEN MEMBER STATES .

29 . THE OBLIGATION IMPOSED ON JUNGHANS WHOLESALERS AND SOLE DISTRIBUTORS BY THE DISTRIBUTION AGREEMENT FOR SOLE DISTRIBUTORS AND WHOLESALERS , AND THE OBLIGATION IMPOSED ON BELGIAN SOLE DISTRIBUTORS BY THE EXCLUSIVE DEALING AGREEMENT , NOT TO ADVERTISE , SET UP BRANCHES OR ESTABLISH SUPPLY DEPOTS FOR JUNGHANS OR DIEHL CLOCKS AND WATCHES IN OTHER EEC COUNTRIES ( SUBJECT TO THE MODIFICATION FOR WHOLESALERS , SEE PARAGRAPH 9 ) PREVENTS DEALERS FROM PURSUING ACTIVE SALES POLICIES IN RESPECT OF JUNGHANS AND DIEHL CLOCKS AND WATCHES IN OTHER EEC COUNTRIES . THIS SUBSTANTIALLY RESTRICTS THEIR OPPORTUNITIES FOR COMPETITION IN THOSE COUNTRIES , SINCE POTENTIAL CUSTOMERS SEEKING TO PURCHASE THE RELEVANT GOODS ARE MADE TO DEPEND SOLELY ON THEIR OWN INITIATIVE . THIS OBLIGATION CONSTITUTES A RESTRICTION OF COMPETITION WITHIN THE MEANING OF ARTICLE 85 ( 1 ) AND MAY AFFECT TRADE BETWEEN MEMBER STATES .

APPLICABILITY OF ARTICLE 85 ( 3 ) OF THE EEC TREATY

UNDER ARTICLE 85 ( 3 ) OF THE EEC TREATY , THE PROVISIONS OF ARTICLE 85 ( 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 THE CONSUMER 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 .

30 . THE QUESTIONS TO BE EXAMINED ARE WHETHER :

( A ) THE UNDERTAKING GIVEN BY JUNGHANS ONLY TO SUPPLY APPOINTED SOLE DISTRIBUTORS WITHIN THE CONTRACTUAL TERRITORIES ( SEE 28 ABOVE ) ,

( B ) THE OBLIGATION IMPOSED ON SOLE DISTRIBUTORS NOT TO DEAL IN COMPETITIVE PRODUCTS ( SEE 28 ABOVE ) , AND

( C ) THE OBLIGATION UNDERTAKEN BY SOLE DISTRIBUTORS AND WHOLESALERS NOT TO ENGAGE IN ACTIVE SALES PROMOTION IN OTHER COUNTRIES OF THE COMMUNITY ( SEE 29 ABOVE ) ,

FULFIL THE CONDITIONS FOR EXEMPTION .

31 . IN SO FAR AS THESE OBLIGATIONS HAVE BEEN AGREED BETWEEN JUNGHANS AND THEIR SOLE DISTRIBUTORS THEY FULFIL THE REQUIREMENTS FOR THE APPLICATION OF REGULATION NO 67/67/EEC ( 3 ) AND ARE THEREFORE EXEMPTED FROM THE PROHIBITION OF ARTICLE 85 ( 1 ) . ADMITTEDLY , FURTHER OBLIGATIONS HAVE BEEN IMPOSED ON THE SOLE DISTRIBUTORS WHICH ARE OUTSIDE THE SCOPE OF THOSE SET OUT IN ARTICLES 1 AND 2 ( 1 ) ( A ) AND ( B ) OF THE REGULATION ( SEE 21 TO 25 ABOVE ) . THESE FURTHER OBLIGATIONS DO NOT HOWEVER AFFECT THE APPLICATION OF REGULATION NO 67/67/EEC SINCE , IN THE VIEW OF THE COMMISSION , THEY DO NOT CONSTITUTE RESTRICTIONS OF COMPETITION .

32 . THE OBLIGATIONS UNDERTAKEN BY JUNGHANS AND THE BELGIAN " SOLE DISTRIBUTORS " ( SEE 30 ( A ) TO ( C ) ABOVE ) ARE NOT WITHIN THE TERMS OF REGULATION NO 67/67/EEC , SINCE JUNGHANS DOES NOT SUPPLY ONLY ONE DEALER IN THE CONTRACTUAL TERRITORY , AS REQUIRED BY ARTICLE 1 ( 1 ) ( A ) OF THE REGULATION , BUT THREE .

IT IS HOWEVER APPROPRIATE TO EXEMPT THESE OBLIGATIONS FROM THE PROHIBITION OF ARTICLE 85 ( 1 ) BY ANALOGY WITH THE CONSIDERATIONS ON WHICH REGULATION NO 67/67/EEC IS BASED .

33 . THE ADVERTISING PROHIBITION IMPOSED ON GERMAN WHOLESALERS ( SEE PARAGRAPH 30 ( C ) ) CONTRIBUTES TO IMPROVING THE DISTRIBUTION OF GOODS . THE RESTRICTIONS TO WHICH THESE WHOLESALERS ARE SUBJECT IN THEIR SALES PROMOTION ACTIVITIES IN OTHER COMMUNITY COUNTRIES WILL HELP TO CONSOLIDATE SALES EFFORTS , TO RATIONALIZE DISTRIBUTION AND TO IMPROVE SUPPLIES TO THE CONSUMER IN THE WHOLESALER'S ALLOTED TERRITORY . THEIR BUSINESS WILL BE DIRECTED TOWARDS POTENTIAL CUSTOMERS IN THEIR AREA WHILE OTHER JUNGHANS DEALERS OR CONSUMERS WILL NOT BE PREVENTED FROM OBTAINING JUNGHANS AND DIEHL CLOCKS AND WATCHES IN THE COUNTRIES AFFECTED .

34 . FURTHERMORE , THE RESTRICTIONS ON GERMAN JUNGHANS WHOLESALERS HAVE BENEFICIAL EFFECTS FOR THE DISTRIBUTION OF JUNGHANS AND DIEHL CLOCKS AND WATCHES IN OTHER COMMUNITY COUNTRIES . THE ENSURE THAT THE SOLE DISTRIBUTORS IN FRANCE , IRELAND , THE NETHERLANDS AND THE UNITED KINGDOM WILL PROMOTE ENERGETICALLY SALES OF GOODS COVERED BY THEIR AGREEMENTS AND OPEN MARKETS AS YET NOT OR ONLY WEAKLY SERVED . TO THE EXTENT THAT THESE DEALERS HAVE NOT YET ADEQUATELY CONSOLIDATED THEIR POSITION ON THE RELEVANT MARKET , THEIR SALES ACTIVITIES WOULD BE ADVERSELY AFFECTED IF JUNGHANS WHOLESALERS WERE FREE TO PURSUE AN ACTIVE SALES POLICY THROUGH ADVERTISING , SETTING UP BRANCHES AND ESTABLISHING DISTRIBUTION DEPOTS IN THEIR ALLOTTED TERRITORIES .

35 . IT CAN BE PRESUMED THAT CONSUMERS THROUGHTOUT THE COMMUNITY ARE ALLOWED A FAIR SHARE OF THE RESULTING BENEFIT ( SEE 33 AND 34 ABOVE ) . THEY BENEFIT DIRECTLY BY THE IMPROVEMENT IN THE DISTRIBUTION OF GOODS . AS REGARDS THE BENEFITS RESULTING FROM THE RATIONALIZATION OF DISTRIBUTION AND THE INTENSIFICATION OF SALES ACTIVITIES BY WHOLESALERS AND BY JUNGHANS SOLE DISTRIBUTORS , IT CAN BE ASSUMED THAT ALL THESE DEALERS WILL BE MORE OR LESS OBLIGED BY THE INTENSITY OF COMPETITION ON THE CLOCKS AND WATCHES MARKET , TO PASS THESE BENEFITS ON TO THE CONSUMER . JUNGHANS RETAILERS AND CONSUMERS , FURTHERMORE , CAN OBTAIN THE RELEVANT GOODS FROM ANY JUNGHANS DEALER IN THE EEC , I.E . FROM WHOLESALERS , SOLE DISTRIBUTORS AND RETAILERS . COMPETITION IS HERE ENSURED BY THE FREEDOM OF ALL JUNGHANS DEALERS TO FIX THEIR OWN PRICES .

36 . THE RESTRICTIONS IMPOSED ON JUNGHANS WHOLESALERS WITH REGARD TO ACTIVE SALES POLICIES IN OTHER COUNTRIES ARE INDISPENSABLE TO THE ATTAINMENT OF THESE IMPROVEMENTS . THEY PROVIDE THE INCENTIVE FOR JUNGHANS WHOLESALERS TO CONCENTRATE THEIR ACTIVITIES IN THEIR ALLOTTED TERRITORIES AND FOR SOLE DISTRIBUTORS , WHO HAVE A WEAK POSITION ON THE MARKET FOR JUNGHANS AND DIEHL CLOCKS AND WATCHES , TO PROMOTE THESE GOODS AS INTENSIVELY AS POSSIBLE .

37 . THE RESTRICTIONS IMPOSED ON THE GERMAN WHOLESALERS DO NOT AFFORD THE UNDERTAKINGS CONCERNED THE OPPORTUNITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION . ALTHOUGH GERMAN WHOLESALERS ARE PREVENTED FROM PURSUING ACTIVE SALES POLICIES IN SOME OTHER COMMUNITY COUNTRIES , THESE DEALERS MAY BY OCCASIONAL PARALLEL EXPORTS STILL EXERT A COMPETITIVE PRESSURE ON SOLE DISTRIBUTORS AND RETAILERS IN THE COUNTRIES IN QUESTION , FOR THEY REMAIN FREE TO SUPPLY RETAILERS AND CONSUMERS IN THOSE COUNTRIES IF THEY SO REQUEST .

MOREOVER , THESE RESTRICTIONS DO NOT APPLY TO JUNGHANS RETAILERS SEEKING TO PROMOTE SALES IN OTHER COUNTRIES , SO THAT THESE RETAILERS CAN OPERATE FREELY THROUGHOUT THE COMMUNITY . IN ANY EVENT JUNGHANS IS ALREADY FACED WITH CONSIDERABLE COMPETITION FROM OTHER CLOCK AND WATCH MANUFACTURERS ON THE VERY MARKETS AFFECTED BY THE ADVERTISING PROHIBITION , FOR IN THOSE MARKETS JUNGHANS AND DIEHL HAVE ONLY A WEAK POSITION .

38 . THE RESTRICTION ON ADVERTISING IMPOSED ON JUNGHANS WHOLESALERS THEREFORE FULFILS ALL THE CONDITIONS NECESSARY FOR EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE EEC TREATY .

APPLICATION OF ARTICLES 6 AND 8 OF REGULATION NO 17

39 . ON 18 JANUARY 1971 JUNGHANS NOTIFIED THE " EXCLUSIVE DEALING AGREEMENTS " CONCLUDED ON 30 JUNE 1969 WITH THE THREE BELGIAN WHOLESALERS . WITH RESPECT TO THIS AGREEMENT , THE DECLARATION UNDER ARTICLE 85 ( 3 ) MAY , UNDER ARTICLE 6 ( 1 ) OF REGULATION NO 17 , BE DEEMED TO HAVE TAKEN EFFECT ON 18 JANUARY 1971 .

40 . THE STANDARD DISTRIBUTION AGREEMENT FOR SOLE DISTRIBUTORS AND WHOLESALERS NOTIFIED BY JUNGHANS ON 28 MARCH 1974 HAS BEEN APPLIED SINCE 1 JULY 1976 . THE DECLARATION UNDER ARTICLE 85 ( 3 ) CONCERNING THIS AGREEMENT SHOULD THEREFORE , UNDER ARTICLE 6 ( 1 ) OF REGULATION NO 17 , HAVE EFFECT FROM 1 JULY 1976 .

41 . SINCE , FOR THE PURPOSES OF ARTICLE 85 ( 3 ) , THE " EXCLUSIVE DEALING AGREEMENTS " WITH THE THREE BELGIAN JUNGHANS WHOLESALERS ARE EQUIVALENT TO EXCLUSIVE DEALING AGREEMENTS COMING WITHIN THE TERMS OF REGULATION NO 67/67/EEC , THE EXEMPTION FOR THESE AGREEMENTS SHOULD , IN ACCORDANCE WITH THAT REGULATION , BE SET TO APPLY UNTIL 31 DECEMBER 1982 .

42 . THE ADVERTISING PROHIBITION IMPOSED ON GERMAN JUNGHANS WHOLESALERS IN THE STANDARD DISTRIBUTION AGREEMENT FOR SOLE DISTRIBUTORS AND WHOLESALERS CAN BE EXEMPTED PROVIDED THAT JUNGHANS AND DIEHL CLOCKS AND WATCHES CONTINUE TO HAVE ONLY A SMALL SHARE OF THE MARKET IN THE COUNTRIES AFFECTED . THIS IS LIKELY TO BE THE CASE FOR AT LEAST THE NEXT SIX YEARS SINCE THE GOODS IN QUESTION ARE EXPOSED TO COMPETITION FROM NUMEROUS MANUFACTURERS BOTH LARGER AND SMALLER IN THE COUNTRIES CONCERNED . THE DECLARATION UNDER ARTICLE 85 ( 3 ) WITH RESPECT TO THIS AGREEMENT SHOULD , THEREFORE , UNDER ARTICLE 8 ( 1 ) OF REGULATION NO 17 , BE ISSUED FOR AN INITIAL PERIOD OF SIX YEARS ,

HAS ADOPTED THIS DECISION :