EUR-Lex - 31977D0722 - EN

5 . ARTICLE 85 ( 1 ) IS CONSEQUENTLY APPLICABLE TO THE BPICA REGULATIONS AND THE NEGATIVE CLEARANCE APPLIED FOR BY BPICA CANNOT BE GIVEN .

III . APPLICABILITY OF ARTICLE 85 ( 3 )

UNDER ARTICLE 85 ( 3 ), THE PROVISIONS OF ARTICLE 85 ( 1 ) MAY BE DECLARED INAPPLICABLE IN THE CASE OF ANY DECISION BY AN ASSOCIATION OF UNDERTAKINGS WHICH CONTRIBUTES TO IMPROVING THE PRODUCTION OR DISTRIBUTION OF GOODS OR TO PROMOTING TECHNICAL OR ECONOMICAL 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 .

1 . THE NEED FOR THE RATIONALIZATION OF INTERNATIONAL FAIRS AND EXHIBITIONS ALREADY ALLUDED TO BY THE COMMISSION ( 1 ) ENTAILS THE CONCENTRATION OF INTERNATIONAL EVENTS WHERE MOTOR VEHICLES ARE DISPLAYED ; THE ADVANTAGES OF THIS TYPE OF CONCENTRATION ARE AS FOLLOWS :

( A ) THE FULL RANGE , OR NEARLY THE FULL RANGE , OF SUPPLY FROM THE MOTOR VEHICLE INDUSTRY CAN BE BROUGHT TOGETHER AND COMPARED , WHICH HAS THE EFFECT OF STIMULATING TECHNICAL PROGRESS , GIVING BETTER GUIDANCE TO THE CONSUMER THROUGH THE PRESENTATION OF A FULL , UP-TO-DATE DISPLAY OF THE PRODUCTS OF THE RELEVANT INDUSTRY , WHILE PROVIDING FAVOURABLE CIRCUMSTANCES FOR THE NEGOTIATION AND CONCLUSION OF BUSINESS TRANSACTIONS . THESE BENEFITS MORE THAN OFFSET THE DISADVANTAGE TO FAIR ORGANIZERS POSED BY THE RESTRICTION ON THE FREEDOM OF MANUFACTURERS TO DISPLAY THEIR VEHICLES . BUT IT MUST BE REMEMBERED THAT THIS RESTRICTION ITSELF CONCERNS ONLY INTERNATIONAL EXHIBITIONS .

( B ) IT ALSO PROMOTES THE MARKETING OF MOTOR VEHICLES . SINCE EXHIBITORS MAY DISPLAY THEIR MOTOR VEHICLES ONLY AT EVENTS AUTHORIZED BY BPICA - WHICH ARE CONSIDERED IMPORTANT ENOUGH TO NECESSITATE PARTICIPATION EVEN THOUGH THE EXPENSE INVOLVED IS HIGH - THE PROHIBITION ON PARTICIPATION IN ALL OTHER INTERNATIONAL EVENTS RESULTS IN A CONSIDERABLE REDUCTION IN THE COSTS OF TAKING PART IN FAIRS AND EXHIBITIONS ; THIS IS TURN REDUCES THE COST PRICE OF EACH MOTOR VEHICLE .

IT CAN THEREFORE BE CONCLUDED THAT THE BPICA REGULATIONS CONTRIBUTE TO IMPROVING THE DISTRIBUTION OF THE RELEVANT PRODUCTS AND TO PROMOTE ECONOMIC PROGRESS , SO THAT THEY SATISFY THE FIRST CONDITION FOR THE APPLICATION OF ARTICLE 85 ( 3 ) OF THE TREATY .

2 . IT MAY ALSO BE CONCLUDED THAT A FAIR SHARE OF THIS IMPROVEMENT IN DISTRIBUTION AND ECONOMIC PROGRESS ACCRUES TO THE CONSUMER . THE PERIODIC CONCENTRATION OF SUPPLY ENABLES PROSPECTIVE PURCHASERS TO GAIN A FULL PICTURE OF THE RANGE OF PRODUCTS AVAILABLE AND TO DECIDE ON WHAT THEY WILL BUY WITHOUT HAVING TO TRAVEL ABOUT ; FURTHERMORE , IN VIEW OF THE KEEN COMPETITION EXISTING IN THE MOTOR INDUSTRY , IT IS LIKELY THAT THE MANUFACTURERS ' SELLING PRICES WILL , TO SOME EXTENT AT LEAST , REFLECT THE SAVINGS MADE AS A RESULT OF THEIR PARTICIPATION IN A SMALLER NUMBER OF EVENTS . IN ANY CASE , MOTOR VEHICLES MAY BE DISPLAYED AT NATIONAL , REGIONAL , LOCAL AND SPECIAL EXHIBITIONS .

THE REGULATIONS CONSEQUENTLY SATISFY THE SECOND CONDITION FOR THE APPLICATION OF ARTICLE 85 ( 3 ).

3 . THE BPICA REGULATIONS IMPOSE NO RESTRICTIONS WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THESE OBJECTIVES . THE RESTRICTION WHICH FLOWS FROM THE OBLIGATION FOR MOTOR MANUFACTURERS AND THEIR REPRESENTATIVES TO REFRAIN FROM TAKING PART IN INTERNATIONAL EXHIBITIONS OTHER THAN THOSE AUTHORIZED BY BPICA MAY BE REGARDED AS INDISPENSABLE TO THE ATTAINMENT OF THE BENEFIT ACHIEVED THROUGH RATIONALIZATION OF THE DISPLAY OF MOTOR VEHICLES AT SUCH EVENTS .

THE REGULATIONS CONSEQUENTLY SATISFY THE THIRD CONDITION FOR THE APPLICATION OF ARTICLE 85 ( 3 ).

4 . THE BPICA REGULATIONS DO NOT ELIMINATE COMPETITION BETWEEN FAIR ORGANIZERS , FOR THEY ARE ENTITLED TO SEEK THE PARTICIPATION OF MOTOR MANUFACTURERS AT ANY EXHIBITION OTHER THAN THOSE WHICH ARE NOT AUTHORIZED BY BPICA . IN ANY CASE , THE DISPLAY OF MOTOR VEHICLES AT AN EXHIBITION IS ONLY ONE FORM OF ATTRACTION AMONG MANY OTHERS .

THE REGULATIONS DO NOT ELIMINATE COMPETITION BETWEEN MANUFACTURERS OR DISTRIBUTORS OF MOTOR VEHICLES , FOR THE DISPLAY OF A PRODUCT AT AN EXHIBITION IS ONLY ONE OF MANY METHODS OF MARKETING . IN ORDER TO PROMOTE SALES FOR MANUFACTURERS OF MOTOR VEHICLES AND THEIR REPRESENTATIVES HAVE AT THEIR DISPOSAL ALL THE FACILITIES OF THE MASS MEDIA FOR ATTRACTING THE LARGEST POSSIBLE NUMBER OF CONSUMERS , NOT TO MENTION THE ADDITIONAL PROMOTION MADE BY THE MANUFACTURERS ' REPRESENTATIVES IN THEIR DIRECT CONTACT WITH POTENTIAL CUSTOMERS .

IN THE PRESENT CASE THE FOLLOWING POINTS MUST BE BORNE IN MIND :

• SEVERAL MOTOR SHOWS ARE HELD EACH YEAR IN THE EEC ;

• THE MAIN INTERNATIONAL SPECIALIZED EXHIBITIONS CURRENTLY ON THE BPICA CALENDAR ARE GENERALLY HELD ONCE OR TWICE YEARLY IN THE COMMUNITY TERRITORY . IF SOME OF THEM ARE HELD AT LONGER INTERVALS , THIS IS CHIEFLY BECAUSE THE MANUFACTURERS THEMSELVES OR THE FAIR ORGANIZERS ARE NOT INTERESTED IN ORGANIZING THEM ANNUALLY AS THE BPICA REGULATIONS WOULD ALLOW . IT MUST ALSO BE BORNE IN MIND THAT ' SPECIALIZED ' VEHICLES MAY ALSO BE DISPLAYED AT ORDINARY MOTOR SHOWS ;

• MANUFACTURERS AND THEIR REPRESENTATIVES MAY TAKE PART IN NATIONAL , REGIONAL , LOCAL AND SPECIAL EXHIBITIONS , AND DO NOT REQUIRE BPICA AUTHORIZATION TO DO SO .

THE REGULATIONS CONSEQUENTLY SATISFY THE FOURTH CONDITION FOR THE APPLICATION OF ARTICLE 85 ( 3 ), SO THAT ALL THE TESTS FOR EXEMPTION ARE SATISFIED .

IV . APPLICABILITY OF ARTICLES 6 , 7 ( 1 ) AND 8 ( 1 ) OF REGULATION NO 17

1 . THE VERSION OF THE BPICA REGULATIONS WHICH OPERATED UNTIL 17 MAY 1976 DID NOT QUALIFY FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), FOR BPICA ' S DISCRETIONARY POWER TO DECIDE WHETHER THIS OR THAT EVENT WAS INTERNATIONAL OR NOT , WITH THE COROLLARY POWER TO AUTHORIZE OR PROHIBIT THE DISPLAYS OF MOTOR VEHICLES THERE , GAVE IT THE POSSIBILITY OF DECIDING THAT EVENTS WHICH WERE IN REALITY NATIONAL OR REGIONAL ONLY WERE TO BE REGARDED AS INTERNATIONAL AND TO PROHIBIT THE DISPLAY OF MOTOR VEHICLES AT SUCH EVENTS . THIS PLACED IT IN A POSITION TO PREVENT THE ORGANIZERS OF FAIRS AND EXHIBITIONS IN GENERAL FROM DISPLAYING MOTOR VEHICLES , AND COMPETITION BETWEEN THESE ORGANIZERS WAS THEREFORE LIABLE TO BE ELIMINATED .

IN RESPONSE TO COMMISSION OBJECTIONS THE REGULATIONS WERE SO AMENDED ON 17 MAY 1976 THAT BPICA NO LONGER HAS ABSOLUTE DISCRETIONARY POWER TO DECLARE THAT A GIVEN FAIR OR EXHIBITION IS INTERNATIONAL . THE ANTI-COMPETITIVE CLAUSES WHICH EXCLUDED THE OPERATION OF ARTICLE 85 ( 3 ) WERE DROPPED AND THE EXEMPTION UNDER THAT PARAGRAPH MAY THEREFORE HAVE EFFECT FROM 17 MAY 1976 .

2 . ARTICLE 7 ( 1 ) OF REGULATION NO 17 REQUIRES THE COMMISSION TO DETERMINE THE PERIOD DURING WHICH THE PROHIBITION IN ARTICLE 85 ( 1 ) OF THE TREATY IS TO BE APPLICABLE . THE CONDITIONS PRECEDENT TO THE APPLICATION OF THAT ARTICLE ARE MET IN THIS CASE , FOR THE BPICA REGULATIONS WERE ADOPTED BEFORE REGULATION NO 17 CAME INTO FORCE AND WERE NOTIFIED WITHIN THE TIME LIMITS SET BY ARTICLE 5 ( 1 ) OF THAT REGULATION . SINCE THE REGULATIONS GAVE BPICA FULL DISCRETIONARY POWER TO DECIDE WHETHER AN EVENT WAS INTERNATIONAL OR NOT , THEY DID NOT QUALIFY FOR ARTICLE 85 ( 3 ) EXEMPTION ; BUT THEY WERE AMENDED TO SATISFY THE REQUIREMENTS OF ARTICLE 85 ( 3 ) WITHIN A REASONABLE PERIOD IN RESPONSE TO COMMISSION OBJECTIONS . THE PROHIBITION IN ARTICLE 85 ( 1 ) OF THE TREATY SHOULD THEREFORE BE INAPPLICABLE AS FROM 13 MARCH 1962 , WHEN REGULATION NO 17 ENTERED INTO FORCE , TO 17 MAY 1976 , WHEN THE NEW BPICA REGULATIONS CAME INTO FORCE .

3 . IN DETERMINING THE DURATION OF ITS DECISION UNDER ARTICLE 8 ( 1 ) OF REGULATION NO 17 , THE COMMISSION MUST TAKE ACCOUNT OF THE SPECIFIC NATURE OF THE AREA COVERED BY THIS CASE AND OF THE FREQUENCY OF THE EVENTS AUTHORIZED BY BPICA ; A PERIOD OF SIX YEARS WOULD SEEM APPROPRIATE .

4 . CONDITIONS MUST BE ATTACHED TO THIS DECISION PURSUANT TO ARTICLE 8 ( 1 ) OF REGULATION NO 17 , SO AS TO ENABLE THE COMMISSION TO VERIFY WHETHER , AS A RESULT OF ANY CHANGE IN THE FACTS WHICH WERE BASIC TO THE MAKING OF THE DECISION , THE EXEMPTION SHOULD BE REVOKED UNDER ARTICLE 8 ( 3 ) OF REGULATION NO 17 , OR WHETHER SPECIFIC ACTS ON THE PART OF THOSE CONCERNED SHOULD BE PROHIBITED . TO THIS END , BPICA MUST BE REQUIRED TO SEND TO THE COMMISSION EACH YEAR THE CALENDAR OF FAIRS AND EXHIBITIONS WHICH IT REGARDS AS INTERNATIONAL AND OF THOSE WHERE THE DISPLAY OF MOTOR VEHICLES IS AUTHORIZED , TOGETHER WITH COPIES OF THE REQUESTS FOR AUTHORIZATION OF INTERNATIONAL SPECIALIZED EXHIBITIONS LODGED WITH THE BPICA SECRETARIAT AND COPIES OF THE LETTERS FROM THAT SECRETARIAT REFUSING SUCH REQUESTS ,

HAS ADOPTED THIS DECISION :