EUR-Lex - 31977D0592 - EN

Article 85 (3) cannot be taken to extend to every benefit resulting from an agreement of this type for the production and sales of the firms concerned. Such benefits are manifestly the usual result of such an agreement, so that if they are treated as an improvement for this purpose Article 85 (3) must be taken to give a general exemption to all such agreements, since the restrictions they impose would, on this basis, have to be regarded as indispensable for the attainment of these objectives. Yet "improvement" for the purpose of Article 85 (3) cannot be defined in such subjective terms as the undertakings own view of their proper interest. It follows from the objects of Article 85 that the concept of "improvement" must be construed in such terms as to require the agreement to entail appreciable objective benefits which compensate for their anti-competitive effects. This is not the case of an agreement for the exchange of figures broken down by firm, which tends to prevent the firms concerned from adopting a competitive attitude towards one another.

Furthermore, a fair share of any resulting benefit was not given to the consumer. The object of the agreement was the artificial creation of a market situation whose unusual open nature and stability was for the sole benefit of the producer and not of the consumer.

42 The agreement concerning mutual notification of prices, discounts, price increases and reductions, rebates and general terms of sale, delivery and payment, also fails the tests of Article 85 (3). There was no contribution to improving production or distribution or to promoting technical or economic progress for the purpose of Article 85 (3). The underlying purpose of the agreement was to help to stabilize prices in economically slack periods. It may well be quite legitimate for an industrialist to operate a pricing policy assuring his firm of the profitability which will provide the sound financial bases required for renewal of plant and for expansion to meet increased demand. But in the system of undistorted competition aimed at by the EEC Treaty, this objective cannot legitimately be pursued by the establishment of a system of solidarity and mutual influence resulting in coordination of the pricing policies operated by the firms concerned. Any benefits which such a system may have for profitability do not constitute an improvement for the purpose of Article 85 (3), for they cannot be regarded as appreciable objective benefits such as would compensate for their anti-competitive effects.

In addition no fair share of any benefit resulting from the agreement on the exchange of information on prices and other terms of business accrued to the consumer, for what the agreement achieved was stabilization of prices in the interests of producers and not of users.

43 The agreement for mutual respect for established distribution channels also fails the tests for exemption under Article 85 (3). This agreement makes no contribution to improving production or distribution of the relevant goods or to promoting technical or economic progress within the meaning of Article 85 (3). The obligation to import 45 % of total imports through the approved wholesalers in the importing country wherever the goods are not imported direct by the foreign manufacturer's local agent there, leaving such agents to handle the remaining 55 % of imports, may indeed help to prevent sharp fluctuations in the market shares held by each manufacturer. Any improvement which this produces for these manufacturers in planning production or sales capacity, however, cannot be regarded as an improvement within the meaning of Article 85 (3) since it produces no appreciable objective benefits such as would compensate for the competitive disadvantages which it creates. The significance of these disadvantages is clearly evident from the fact that the agreement prevents non-approved dealers from penetrating the market reserved for approved agents. Lastly, the agreement for the mutual respect of established distribution channels does not allow the consumer a fair share of the resulting benefit.

Article 1

The agreement to which S.A. Papeteries de Belgique, Brussels, S.A. Intermills, La Hulpe, Kon. Papierfabrieken Van Gelder Zonen N.V., Amsterdam, and Kon. Nederlandsche Papierfabriek N.V., Maastricht, were party in 1973 and 1974 and under which they exchanged monthly output and sales figures, broken down by type of paper and by country of destination, for their mass consumption uncoated wood-free printing paper and stationery business, and the agreements to which the undertakings listed in Article 3 were party from 1958 to the first half of 1976, agreements concerning the printing paper and stationery (but not newsprint) business, and under which: (a) they exchanged information on prices, rebates, price increases and reductions, discounts and general terms of sale, supply and payment;

(b) they respected each other's distribution channels, established by the approval of wholesalers, to whom the status of "approved buyer" was accorded,

constitued infringements of Article 85 (1) of the Treaty establishing the European Economic Community.

Article 2

The applications made to the Commission on 30 and 31 October 1962 by Vereeniging van Nederlandsche Papierfabrikanten, Haarlem, and the Association des Fabricants de Pâtes, Papiers et Cartons de Belgique, Brussels, for a declaration that Article 85 (1) was inapplicable pursuant to Article 85 (3), are rejected.

Article 3

This decision is addressed to the following undertakings and associations of undertakings: - Association des Fabricants de Pâtes, Papiers et Cartons de Belgique, Brussels, Belgium;

• Vereeniging van Nederlandsche Papierfabrikanten, Haarlem, Netherland;

• SA Papeteries de Belgique, Brussels, Belgium;

• SA Intermills, La Hulpe, Belgium;

• SA Papeteries de Virginal, Virginal, Belgium;

• Kon. Papierfabrieken Van Gelder Zonen NV, Amsterdam, Netherlands;

• Gelderland-Tielens Papierfabrieken BV, Nijmegen, Netherlands;

• NV Papierfabrieken Van Houtum & Palm, Apeldoorn, Netherlands;

• Papierfabriek Huiskamp & Sanders NV, Eerbeek, Netherlands;

• Kon. Nederlandsche Papierfabriek NV, Maastricht, Netherlands.

Done at Brussels, 8 September 1977.

For the Commission

Raymond VOUEL

Member of the Commission