EUR-Lex - 31977D0781 - EN

( B ) AS A RESULT OF THE FOREGOING , TWO PARTIES WHO WERE , PRIOR TO THE AGREEMENT , INDEPENDENTLY AVAILABLE FOR THE DEVELOPMENT , MANUFACTURE AND SALE OF SODIUM CIRCULATORS ARE FOR THE DURATION OF THE AGREEMENT REPLACED BY ONE ; NAMELY THE JOINT VENTURE . WHILE THE AGREEMENT IS IN FORCE , CUSTOMERS ' DEMAND WILL THEREFORE BE MET BY THE DESIGNS AND PRICES OF THE JOINT VENTURE , RATHER THAN THE POSSIBILITY OF ALTERNATIVE DESIGNS AND PRICES FROM THE PARTIES INDEPENDENTLY .

( C ) PARENT PARTIES WILL NOT IN GENERAL COMPETE WITH THE ACTIVITIES OF JOINT VENTURES IN WHICH THEY HOLD SUBSTANTIAL STAKES , EVEN IF THEY ARE CONTRACTUALLY FREE TO DO SO . IN THIS CASE IN PARTICULAR , NEITHER PARTY WOULD , WITHIN THE CONTEXT OUTLINED IN 4 OF I ABOVE , BE LIKELY TO DEVOTE ITS RESOURCES SEPARATELY TO AN INDIVIDUAL DEVELOPMENT EFFORT OVER AND ABOVE THAT REQUIRED BY THE JOINT VENTURE . THIS EFFECT IS HERE MADE EXPLICIT AND ENSURED BY AN AGREED EXPRESS NON-COMPETITION CLAUSE . SAVE IN THE EXCEPTIONAL CIRCUMSTANCES REFERRED TO IN 3 ( E ) ( IX ) OF I ABOVE , NEITHER PARTY IS FREE TO ACT INDEPENDENTLY OR TO ENTER INTO AGREEMENTS WITH THIRD PARTIES IN RELATION TO ANY ACTIVITY WHICH IS COMPETITIVE WITH THE STATED PURPOSES OF THE JOINT VENTURE . NEITHER PARTY IS AVAILABLE , SAVE IN EXCEPTIONAL CIRCUMSTANCES , TO COOPERATE INDEPENDENTLY IN THE DEVELOPMENT OF SODIUM CIRCULATORS WITH THIRD PARTIES , TO DISCLOSE TECHNICAL INFORMATION TO THIRD PARTIES FOR THIS PURPOSE OR TO TENDER INDEPENDENTLY TO CUSTOMERS FOR THE SUPPLY OF SODIUM CIRCULATORS .

( D ) THE SHARING BETWEEN THE PARTIES OF ALL DEVELOPMENT RESULTS HAS THE EFFECT THAT WHILE THE AGREEMENT IS IN FORCE BOTH PARTIES MAINTAIN THE SAME LEVEL AND CHARACTER OF SODIUM CIRCULATOR TECHNOLOGY , SO THAT NEITHER PARTY CAN OBTAIN A TECHNOLOGICAL ADVANTAGE OVER THE OTHER IN RELATION TO SODIUM CIRCULATORS OR APPLICABLE PRODUCTION METHODS .

( E ) IN CIRCUMSTANCES SUCH AS IN THIS CASE , THE EXISTENCE OF A JOINT VENTURE IN ONE FIELD IS LIKELY TO PROVIDE OPPORTUNITIES AND INDUCEMENTS TO PARENT COMPANIES , WHO EACH HAVE RELATED INTERESTS ALSO IN OTHER AREAS , TO ENLARGE THEIR COMMON ACTIVITIES AND IMPAIR FREE COMPETITION BETWEEN THEM IN THOSE OTHER AREAS . HERE EACH OF THE PARTIES HAS HIGHLY DIVERSIFIED INDUSTRIAL INTERESTS . APART FROM THEIR JOINT ACTIVITY IN THE FIELD OF THE JOINT VENTURE , THE PARTIES HAVE OTHER OVERLAPPING , RELATED AND COMPETITIVE ACTIVITIES . BY WAY OF EXAMPLES , BOTH ARE MANUFACTURERS OF PUMPS OTHER THAN SODIUM CIRCULATORS , SPECIFICALLY FOR POWER ENGINEERING AND OIL-PIPELINE APPLICATIONS , AND , AS TO FOUNDRY PRODUCTS AND HIGH-PRECISION STEEL CASTINGS , WEIR IS A MAJOR PRODUCER AND SUPPLIER AND GEC IS A MAJOR USER . THE PARTIES HAVE THEREFORE NOT ONLY HORIZONTALLY COMPETITIVE BUT ALSO VERTICALLY RELATED ACTIVITIES IN OTHER AREAS . SENIOR EMPLOYEES OF BOTH PARTIES ARE SECONDED TO THE JOINT VENTURE , BUT REMAIN ON THE ORIGINAL EMPLOYING PARTY ' S PAYROLL AND UNDER ITS ADMINISTRATIVE CONTROL . THESE EMPLOYEES RETAIN INTERESTS IN THEIR EMPLOYERS ' ACTIVITIES OUTSIDE THE FIELD OF THE JOINT VENTURE . THROUGH THEIR CONTINUING ASSOCIATION WITH EACH OTHER WITHIN THE JOINT VENTURE , THE COINCIDENCE OF INTERESTS OF THE PARTIES IN OTHER AREAS CAN BE EXPECTED TO LEAD TO AN IMPAIRMENT OF COMPETITION BETWEEN THEM ALSO IN THESE OTHER AREAS .

( F ) THE AGREEMENT ATTRIBUTES TO EACH PARTY A SEPARATE SHARE OF RESPONSIBILITY AND WORK TO BE CONTRIBUTED TO THE JOINT VENTURE . THE PROVISIONS AS ORIGINALLY NOTIFIED GAVE TO EACH OF THE PARTIES FOR THE DURATION OF THE AGREEMENT SUBSTANTIALLY UNQUALIFIED RIGHTS TO PERFORM THE WORK NOT ONLY IN ITS OWN DEFINED FIELD , BUT ALSO IN THE FIELD OF THE OTHER PARTY WHENEVER THE OTHER WAS UNWILLING OR UNABLE TO PERFORM ITS PART . THESE ORIGINAL PROVISIONS RESTRICTED COMPETITION THROUGH THEIR EFFECT OF REINFORCING THE EXCLUSIVITY OF THE COOPERATION BETWEEN THE PARTIES AND OF PRACTICALLY RULING OUT ANY LIKELIHOOD OF ACCESS TO THE WORK BY ANY QUALIFIED THIRD PARTIES .

( G ) ALL THE FOREGOING RESTRICTIVE EFFECTS ARE SIGNIFICANTLY UNDERLINED BY THE CONSIDERABLE IMPORTANCE OF THE PARTIES ON THE AFFECTED MARKET .

3 . THE AGREEMENT MAY AFFECT TRADE BETWEEN MEMBER STATES IN RESPECT OF ALL THE RESTRICTIONS REFERRED TO IN 2 OF II ABOVE AND , IN PARTICULAR , AS FOLLOWS :

( A ) SODIUM CIRCULATORS ARE IN OPERATION OR PLANNED IN THE UNITED KINGDOM , FRANCE , THE FEDERAL REPUBLIC OF GERMANY , ITALY AND THE NETHERLANDS . COMPANIES WHICH SPECIALIZE IN EQUIPMENT FOR SODIUM CIRCUITS AND IN CIRCULATING PUMPS FOR NUCLEAR REACTORS EXIST IN ALL THESE COUNTRIES . EACH OF THE PARTIES HAS A SUBSTANTIAL BASE IN THE UNITED KINGDOM , HAS TRADING ACTIVITIES ELSEWHERE IN THE COMMUNITY AND SPECIFICALLY EACH PARTY HAS EXPERTISE RELATING TO SODIUM CIRCULATORS . THERE IS A KNOWN REQUIREMENT FOR SUCH EXPERTISE ALSO IN MEMBER STATES OTHER THAN THE UNITED KINGDOM . ( SEE 4 ( E ) OF I ABOVE .) IN THE ABSENCE OF THE NOTIFIED AGREEMENT , EITHER PARTY WOULD HAVE BEEN FREE :

( I ) INDEPENDENTLY TO DEVELOP , MAKE OR SELL SODIUM CIRCULATORS ALSO FOR USE IN OTHER MEMBER STATES ;

( II ) INDEPENDENTLY TO COOPERATE IN THE DEVELOPMENT OF SODIUM CIRCULATORS WITH THIRD PARTIES ALSO IN OTHER MEMBER STATES .

BY VIRTUE OF THE AGREEMENT AND THE EXISTENCE OF THE JOINT VENTURE , NEITHER PARTY CAN CHOOSE TO ENGAGE IN ANY SUCH INDEPENDENT DEVELOPMENT , MANUFACTURE OR SALE OR COOPERATION .

( B ) THERE ARE WITHIN THE COMMUNITY SOME 25 COMPANIES WHICH SPECIALIZE IN EQUIPMENT FOR SODIUM CIRCUITS AND IN CIRCULATING PUMPS FOR NUCLEAR REACTORS . ( SEE 4 ( E ) OF I ABOVE .) THE COOPERATION BETWEEN THE TWO PARTIES WHO ARE OF CONSIDERABLE IMPORTANCE ON THE AFFECTED MARKET IN THE UNITED KINGDOM WILL HAVE THE EFFECT OF MAKING IT MORE DIFFICULT FOR MANUFACTURERS OF SODIUM CIRCULATORS IN THE OTHER MEMBER STATES TO SELL SODIUM CIRCULATORS IN THE UNITED KINGDOM AND OF MAKING IT MORE LIKELY THAT ANY SALES BY THE PARTIES IN OTHER MEMBER STATES WILL BE JOINT RATHER THAN INDEPENDENT .

4 . THE EFFECT OF THE RESTRICTIONS ON COMPETITION IS LIKELY TO BE APPRECIABLE BECAUSE BOTH PARTIES ARE GROUPS OF SIGNIFICANT INDUSTRIAL IMPORTANCE , BOTH HAVE CONSIDERABLE FINANCIAL RESOURCES , BOTH ARE ESTABLISHED THROUGHOUT THE COMMUNITY AND THE PRODUCTS OF THE JOINT VENTURE ARE VERY COSTLY AND OF SUBSTANTIAL CONSEQUENCE .

5 . ARTICLE 85 ( 1 ) THEREFORE APPLIES TO THE NOTIFIED AGREEMENT .

III . APPLICABILITY OF ARTICLE 85 ( 3 )

UNDER ARTICLE 85 ( 3 ) OF THE TREATY , THE PROVISIONS OF ARTICLE 85 ( 1 ) OF THE TREATY MAY BE DECLARED INAPPLICABLE IN THE CASE OF ANY AGREEMENT WHICH CONTRIBUTES TO THE IMPROVEMENT OF THE PRODUCTION OR DISTRIBUTION OF GOODS OR TO THE PROMOTION OF 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 .

1 . THE AGREEMENT AND THE JOINT VENTURE CONTRIBUTE TO THE IMPROVEMENT OF THE PRODUCTION AND DISTRIBUTION OF GOODS AND TO THE PROMOTION OF TECHNICAL PROGRESS AS FOLLOWS :

( A ) THE PRODUCTS OF THE JOINT VENTURE ARE TECHNICALLY VERY SOPHISTICATED . THEY ARE CIRCULATORS FOR A LIQUID METAL COOLANT WHICH ARE TO OPERATE IN AN INTENSELY REACTIVE AND POTENTIALLY HAZARDOUS ENVIRONMENT AT VERY CONSIDERABLE TEMPERATURES . THEIR DEVELOPMENT IS COSTLY AND REQUIRES HIGHLY SPECIALIZED CONTRIBUTIONS FROM WIDELY DIFFERENT TECHNOLOGICAL SKILLS . POSSIBILITIES OF METAL CORROSION AND EROSION POSE METALLURGICAL PROBLEMS . LIKELY CAVITATIONAL EFFECTS IN THE COOLANT POSE HYDRAULIC-TYPE PROBLEMS . SAFE OPERATIONAL PERFORMANCE OVER LONG PERIODS REQUIRES MINUTELY ENGINEERED TOLERANCES . THIS IMPLIES CONSIDERABLE EFFORT AND INVOLVES RISKS WHICH THE PARTIES ARE TO OVERCOME BY CONTRIBUTING TO THE JOINT VENTURE THEIR DIFFERING BUT COMPLEMENTARY SKILLS AND FACILITIES . NEITHER PARTY COULD WITH ITS OWN RESOURCES AND CAPABILITIES ALONE , DEVELOP ENTIRE SODIUM CIRCULATORS WHICH INCORPORATE ALL SPECIFIED CHARACTERISTICS AS EFFECTIVELY , ECONOMICALLY , OR QUICKLY AS BOTH PARTIES JOINTLY .

( B ) THE ONLY CUSTOMERS IN THE UNITED KINGDOM FOR THE PRODUCTS IN QUESTION ARE NPC FOR THE DEVELOPMENT , AND THE CENTRAL ELECTRICITY GENERATING BOARD , WHICH IS WHOLLY GOVERNMENT-CONTROLLED , FOR THE FINISHED PRODUCTS . NPC AND ALSO THE UNITED KINGDOM ATOMIC ENERGY AUTHORITY , WHICH TOGETHER ARE RESPONSIBLE FOR ESTABLISHING THE DESIGN OF THE PRODUCTS IN QUESTION , ENCOURAGED AND HAVE APPROVED THE COOPERATION OF THE PARTIES IN THE DEVELOPMENT OF SODIUM CIRCULATORS IN JOINT VENTURE . THE SOLE CUSTOMERS IN THE UNITED KINGDOM THEREFORE KNOWINGLY AND DELIBERATELY FORGO THE BENEFITS TO THEM OF COMPETITION FOR THE COMPENSATING ADVANTAGE OF A COMPOSITE TECHNICAL SOLUTION FROM THE JOINT VENTURE TO WHICH THE PARTIES ARE TO CONTRIBUTE THEIR SEPARATE BUT COMPLEMENTARY SPECIALIZED EXPERTISE .

( C ) THE AGREEMENT AND THE JOINT VENTURE ARE OF A SHORT-TERM DURATION IF CONSIDERED IN RELATION TO THE COMPLEXITY OF DEVELOPMENT AND THE PROJECTED LONG-TERM FUTURE OF FAST REACTOR PROGRAMMES . FOLLOWING THE COMPLETION OF THE JOINT DEVELOPMENT AND EXPIRY OF THE AGREEMENT , EACH PARTY WILL BE STRONGER IN THE FIELD OF EXPERTISE OF THE OTHER AND WILL HAVE ENHANCED ITS COMPETENCE AND TECHNICAL VERSATILITY IN THE INDEPENDENT AND COMPETITIVE DEVELOPMENT , CONSTRUCTION AND SALE OF SODIUM CIRCULATORS WHICH ARE CAPABLE OF MEETING FULL OPERATIONAL REQUIREMENTS .

( D ) PURSUANT TO THE AGREEMENT , WEIR IN PARTICULAR IS LIKELY TO STRENGTHEN ITS POSITION AS A SUPPLIER OF EQUIPMENT FOR POWER ENGINEERING USES AND SPECIFICALLY IN RELATION TO SODIUM CIRCULATOR TECHNOLOGY . GEC , WITH A VERY SUBSTANTIAL PROPORTION OF ITS TURNOVER ( CURRENTLY POUND ST . 306 MILLION ) ATTRIBUTABLE TO POWER PLANT EQUIPMENT , HAS BEEN A FAR MORE CONSIDERABLE FORCE THAN WEIR IN THIS RESPECT . WHILE THIS BALANCE IS NOT LIKELY TO CHANGE DRAMATICALLY THE AGREEMENT WILL NEVERTHELESS HAVE THE LIKELY EFFECT THAT , RELATIVELY , WEIR WILL SIGNIFICANTLY ENLARGE ITS OWN COMPETITIVE POSITION IN THIS SECTOR .

2 . A FAIR SHARE OF THE FOREGOING BENEFITS WILL BECOME AVAILABLE TO CONSUMERS :

( A ) APART FROM LEADING TO IMPROVED AND MORE RAPIDLY ACHIEVED TECHNICAL SOLUTIONS , THE TEMPORARY POOLING OF THE PARTIES ' PRE-EXISTING PRODUCTION , TEST AND OTHER FACILITIES AND SKILLS WILL AVOID A DUPLICATION OF EFFORT AND EMPLOYMENT OF RESOURCES AND WILL THEREFORE ALSO ACHIEVE SAVINGS . NEITHER PARTY , AND ACCORDINGLY NEITHER PARTY ' S CUSTOMERS , WILL NEED TO FUND THAT PART OF EXPENDITURE WHICH WOULD , IN THE ABSENCE OF THE JOINT VENTURE , BE ATTRIBUTABLE TO THE ACQUISITION OF NECESSARY TECHNICAL INFORMATION OR OF FACILITIES NOT AVAILABLE TO THAT PARTY AND WHICH IS , BY VIRTUE OF THE JOINT VENTURE , CONTRIBUTED BY THE OTHER PARTY . MOREOVER , NEITHER PARTY COULD INDEPENDENTLY ACHIEVE THE REQUIRED DEVELOPMENT RESULT AS QUICKLY AS THE PARTIES WITHIN THE CONTEXT OF THE JOINT VENTURE . THESE BENEFITS ARE ACKNOWLEDGED BY THE SOLE CUSTOMERS IN THE UNITED KINGDOM FOR SODIUM CIRCULATORS ( SEE 1 ( B ) OF III ABOVE ) WHO , BY VIRTUE OF BEING THE SOLE CUSTOMERS IN THE UNITED KINGDOM , ARE ABLE TO NEGOTIATE FROM A POSITION OF STRENGTH .

( B ) THE MENTIONED BENEFITS WILL NOT BE CONFINED TO PURCHASERS OF SODIUM CIRCULATORS AND WILL APPLY MORE GENERALLY ALSO TO CUSTOMERS WITH REQUIREMENTS FOR LIQUID METAL TECHNOLOGY AND , IN PARTICULAR , LIQUID METAL CIRCULATION SYSTEMS .

( C ) THROUGH THEIR ASSOCIATION IN JOINT VENTURE , EACH PARTY WILL INTENSIFY AND ACCELERATE ITS ACQUISITION OF A COMPREHENSEIVE EXPERTISE IN SODIUM CIRCULATOR TECHNOLOGY . ON COMPLETION OF THE DEVELOPMENT AND AFTER EXPIRY OF THE AGREEMENT , THE MORE EFFECTIVE COMPETITIVE POSITION OF EACH OF THE PARTIES TOWARDS THE OTHER WILL GIVE TO CUSTOMERS A BETTER CHOICE OF MORE CAPABLE SUPPLIERS .

3 . THE AGREEMENT ( AS AMENDED ) AND THE JOINT VENTURE DO NOT IMPOSE UPON THE PARTIES ANY RESTRICTIONS WHICH ARE NOT INDISPENSABLE TO THE ATTAINMENT OF THE BENEFITS MENTIONED IN 1 AND 2 OF III ABOVE .

( A ) IN THE LIGHT OF THE TECHNICAL PROBLEMS OUTLINED IN 4 ( A ) AND ( B ) OF I AND IN 1 ( A ) OF III ABOVE AND HAVING REGARD TO THE PARTIES ' COMPLEMENTARY SKILLS , A COOPERATION BETWEEN THE PARTIES WITHIN THE CONTEXT OF A JOINT VENTURE PROVIDES BETTER PRACTICAL PRE-CONDITIONS FOR ACHIEVING ACCEPTABLE , TIMELY AND SAFE TECHNICAL SOLUTIONS THAN THE FREE PLAY OF COMPETITION BETWEEN THE PARTIES .

( B ) THE STATE OF TECHNICAL ATTAINMENT OF THE PARTIES INDIVIDUALLY PRIOR TO THE AGREEMENT WAS SUCH THAT NPC WAS NOT WILLING TO PLACE A DEVELOPMENT CONTRACT WITH EITHER OF THE PARTIES INDEPENDENTLY OR TO INVITE THEM TO TENDER IN COMPETITION WITH EACH OTHER . IN THE EVENT , NPC ENCOURAGED THE PARTIES TO COOPERATE AND WELCOMED THEIR JOINT VENTURE .

( C ) A MORE INDEPENDENT AND LOOSER FORM OF COOPERATION THAN A JOINT VENTURE COULD NOT IN THIS CASE BE EXPECTED TO LEAD TO SO COHERENT OR COMPREHENSIVE A DEVELOPMENT . A CROSS-LICENSING AND DISCLOSURE OF INFORMATION AGREEMENT , FOR EXAMPLE , WOULD NOT RESULT IN A SUFFICIENTLY CLOSE SHARING BETWEEN THE PARTIES OF ALL THEIR COMPLEMENTARY SKILLS AND FACILITIES . A SPECIALIZATION AGREEMENT WOULD NOT GIVE TO EACH PARTY SUFFICIENT EXPERIENCE OF OR INSIGHT INTO THE WORK OF THE OTHER . NEITHER TYPE OF ALTERNATIVE AGREEMENT COULD AS ADEQUATELY PROVIDE FOR THE CONTINUOUS FEEDBACK AND SOLUTION OF INTERFACE PROBLEMS BETWEEN THE CONTRIBUTING TECHNOLOGIES OR BRING ABOUT THE BENEFITS SET OUT IN 2 OF III ABOVE .

( D ) FOR YEARS PAST , GEC HAS BEEN A FAR MORE CONSIDERABLE SUPPLIER THAN WEIR OF PRODUCTS AND SERVICES WITHIN THE FIELD OF POWER ENGINEERING IN GENERAL AND FOR NUCLEAR REACTOR INSTALLATIONS IN PARTICULAR . ACCORDINGLY , GEC IS IN A SIGNIFICANTLY STRONGER MARKET POSITION THAN WEIR FOR PRODUCTS OF THE KIND IN QUESTION . WEIR COULD THEREFORE NOT HAVE BEEN EXPECTED TO FORGO , AND WAS NOT WILLING TO FORGO , THE OPPORTUNITIES OF FULL AND EQUAL PARTICIPATION WHICH ARE OFFERED THROUGH ITS PARTICIPATION IN A JOINT VENTURE . SUCH OPPORTUNITIES COULD NOT HAVE ARISEN FOR WEIR THROUGH A LOOSER FORM OF ASSOCIATION .

( E ) SO FAR AS THE NON-COMPETITION EFFECT OF THE JOINT VENTURE AND THE NON-COMPETITION RESTRICTIONS OF THE AGREEMENT ARE CONCERNED , THE FOLLOWING APPLIES . NEITHER PARTY COULD REASONABLY HAVE BEEN EXPECTED IN THE CIRCUMSTANCES OF THIS CASE , IN WHICH EACH OF THEM COMMITS ALL ITS EXISTING AND FUTURE APPLICABLE FACILITIES AND EXPERTISE TO THE JOINT WORK , TO GIVE TO THE OTHER PARTY UNRESERVED RIGHTS TO EXPLOIT THE RESULTS INDEPENDENTLY OR IN ASSOCIATION WITH THIRD PARTIES . THE AGREEMENT BETWEEN THE PARTIES HERE HAS NON-COMPETITION RESTRICTIONS WHICH DO NOT CONTINUE IN EFFECT AFTER EXPIRY OF THE AGREEMENT OR THE LIFE OF THE JOINT VENTURE . MOREOVER , THE RESTRICTIONS ARE QUALIFIED . THEY ARE SUBJECT TO EITHER PARTY ' S FREEDOM TO ACT INDEPENDENTLY WHERE A POTENTIAL CUSTOMER DECLINES TO CONTRACT WITH THE JOINT VENTURE OR WHERE THE OTHER PARTY DECLINES TO SUPPORT THE JOINT VENTURE IN THE ACCEPTANCE OF A PARTICULAR ORDER . FOR THE REASONS OUTLINED ABOVE IN THIS PARAGRAPH , THE PARTIES COULD NOT HAVE BEEN EXPECTED TO ESTABLISH THE JOINT VENTURE WITH LESS SEVERE RESTRICTIONS IN THIS RESPECT .

( F ) THE ORIGINALLY NOTIFIED TEXT OF THE AGREEMENT CONTAINED SOME RESTRICTIVE PROVISIONS WHICH WERE NOT INDISPENSABLE TO THE ATTAINMENT OF THE MENTIONED BENEFITS . THESE PROVISIONS ARE REFERRED TO IN 3 ( E ) ( VI ), ( VII ) AND ( IX ) OF I ABOVE . THEY RESULTED IN TOO RIGID AN APPORTIONMENT OF WORK BETWEEN THE PARTIES FOR THE DURATION OF THE AGREEMENT AND GAVE FAR-REACHING RIGHTS TO EACH PARTY TO PERFORM WORK WHICH THE OTHER WAS UNWILLING OR UNABLE TO UNDERTAKE . AT THE REQUEST OF THE COMMISSION , THE PARTIES HAVE AMENDED THESE PROVISIONS TO ALLOW FOR ALTERNATIVE ALLOCATIONS OF FUTURE WORK AND TO AFFORD GREATER POSSIBILITIES OF SUBCONTRACTING WORK ALSO TO QUALIFIED THIRD PARTIES .

4 . THE AGREEMENT DOES NOT AFFORD THE PARTIES THE POSSIBILITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION .

( A ) SODIUM CIRCULATOR SYSTEMS ARE CURRENTLY IN EARLY OR EXPERIMENTAL OPERATION OR UNDER DEVELOPMENT IN FRANCE , ITALY , THE NETHERLANDS , THE FEDERAL REPUBLIC OF GERMANY , THE UNITED STATES , JAPAN AND THE USSR . THERE HAS ALSO BEEN A PREVIOUS SEPARATE THIRD-PARTY DEVELOPMENT OF A SODIUM CIRCULATOR IN THE UNITED KINGDOM , FOR ASSESSMENT IN A HIGH-TEMPERATURE TEST LOOP OPERATED BY NPC . THE AVAILABILITY OF SODIUM PUMP TECHNOLOGY TO A REASONABLE NUMBER OF OTHER COMPANIES ( SEE 4 ( E ) OF I ABOVE ), WITHIN AND OUTSIDE THE COMMUNITY , ENSURES A POTENTIAL OF COMPETITION FROM THIRD PARTIES .

( B ) FOLLOWING EXPIRY OF THE AGREEMENT , BOTH PARTIES WILL BE COMPETITORS AT ARM ' S LENGTH WITH ENHANCED TECHNICAL VERSATILITY AND COMPETENCE .

5 . THE AGREEMENT , AS AMENDED , SATISFIES THE TESTS OF EXEMPTION OF ARTICLE 85 ( 3 ), SUBJECT AS HEREINAFTER APPEARS .

IV . APPLICABILITY OF ARTICLE 8 OF REGULATION NO 17

UNDER ARTICLE 8 ( 1 ) OF REGULATION NO 17 , A DECISION IN APPLICATION OF ARTICLE 85 ( 3 ) SHALL BE ISSUED FOR A SPECIFIED PERIOD AND CONDITIONS AND OBLIGATIONS MAY BE ATTACHED THERETO .

1 . THE AGREEMENT , AS AMENDED , AND THE JOINT VENTURE CAN BE AUTHORIZED UNDER ARTICLE 85 ( 3 ) FROM THE DATE OF NOTIFICATION , NAMELY 14 APRIL 1977 , AND UNTIL EXPIRY OF THE AGREEMENT , WHICH IS LIKELY TO OCCUR ABOUT MID-1989 ( SEE 3 ( E ) ( XI ) AND ( XII ) OF I ABOVE ). IF THE AGREEMENT SHOULD NOT THEN EXPIRE IN ACCORDANCE WITH ITS TERMS , THE EXEMPTION CAN CONTINUE FOR THE REMAINING LIFE OF THE AGREEMENT , BUT WILL CEASE TO HAVE EFFECT NOT LATER THAN 31 DECEMBER 1989 .

2 . THE CONDITIONS FOR EXEMPTION ARE FULFILLED FOR THE STATED PERIOD , SOLELY IN THE LIGHT OF THE SPECIAL CIRCUMSTANCES IN THIS CASE , AS OUTLINED HEREIN . THE CONDITIONS FOR EXEMPTION WOULD PROBABLY NOT HAVE BEEN SATISFIED FOR THE STATED PERIOD IF THE PARTIES HAD BEEN ABLE TO ENGAGE IN JOINT PRODUCTION OR JOINT SALES OF SODIUM CIRCULATORS FOR THE ENTIRE TIME OR FOR A SIGNIFICANTLY LONG TIME DURING THE CURRENCY OF THE AGREEMENT . IT IS CLEAR IN THIS CASE THAT THE PRACTICAL DEVELOPMENT TO SUBSTANTIAL COMPLETION IS UNLIKELY TO TERMINATE UNTIL SOME ONE OR TWO YEARS AFTER THE END OF THE DEVELOPMENT CONTRACT AWARDED BY NPC , THAT IS , UNTIL ABOUT ONE OR TWO YEARS AFTER MID-1984 , SAY , MID-1986 . ALTHOUGH SOME INITIAL PRODUCTION IS LIKELY TO START BEFORE THIS DATE , THERE WILL BE A CONTINUING NEED AT THAT STAGE TO MONITOR AND , THROUGH FURTHER CORRECTIVE DEVELOPMENT , TO REMEDY ANY PROBLEMS WHICH THEN BECOME APPARENT ( SEE 4 ( D ) OF I ABOVE ). ACCORDINGLY , QUESTIONS OF EFFECTIVE JOINT PRODUCTION AND OF JOINT SALE WITHIN THE CONTEXT OF THE JOINT VENTURE ARE LIKELY TO ARISE ONLY DURING THE LAST THREE-AND-A-HALF YEARS OR SO OF THE AGREEMENT . THE PERIOD OF EXEMPTION IN THIS CASE , PARTICULARLY SO FAR AS IT RELATES TO JOINT PRODUCTION AND SALE , IS JUSTIFIED ONLY BY THE FOREGOING CONSIDERATIONS , BY THE COMPLEXITY OF THE DEVELOPMENT AND BY THE LIKELY LONG-TERM FUTURE OF FAST REACTOR PROGRAMMES .

3 . THE EXEMPTION RELATES SOLELY TO THE NOTIFIED AGREEMENT , AS AMENDED ON 30 SEPTEMBER 1977 , AND DOES NOT COVER ANY EXTENSIONS OR CHANGES IN STRUCTURE OR ENLARGEMENT OF ACTIVITIES OF THE JOINT VENTURE BEYOND THOSE DEFINED IN THE AGREEMENT . TO ENABLE THE COMMISSION TO ASSESS THE OPERATIONS OF THE JOINT VENTURE AND THE POSITION OF THE PARTIES IN THIS LIGHT , THE COMMISSION REQUIRES TO BE INFORMED BY THE PARTIES OF THE FOLLOWING MATTERS PROMPTLY FROM THE OCCURRENCE OF ANY RELEVANT EVENT ; NAMELY :

( A ) THE DATE WHEN THE DEVELOPMENT CONTRACT AWARDED BY NPC BECOMES EFFECTIVE ( SEE 3 ( E ) ( XII ) OF I ABOVE ).

( B ) THE EFFECTIVE DATE AND NATURE OF ANY CONTRACTS PLACED DURING THE PERIOD OF THE NOTIFIED AGREEMENT WITH THE JOINT VENTURE OR THE PARTIES , OR ANY OF THEM , FOR THE DEVELOPMENT OR PRODUCTION OF SODIUM CIRCULATORS , OTHER THAN FURTHER DEVELOPMENT CONTRACTS PLACED BY NPC OR THE UNITED KINGDOM ATOMIC ENERGY AUTHORITY .

( C ) THE ADMISSION OF ANY THIRD PARTY , OTHER THAN NPC OR THE UNITED KINGDOM ATOMIC ENERGY AUTHORITY , TO THE DEVELOPMENT ACTIVITY OF THE JOINT VENTURE , EXCEPT AS SUPPLIERS OR SUBCONTRACTORS FOR MINOR ITEMS OR AS PURCHASERS LAYING DOWN THEIR OWN SPECIFICATIONS .

( D ) ARBITRATION AWARDS OR SETTLEMENTS ARISING OUT OF ARBITRATION PROCEEDINGS IN RELATION TO THE MATTERS REFERRED TO IN 3 ( E ) ( X ), ( XIII ) AND ( XIV ) OF I ABOVE , OR OTHERWISE .

( E ) THE GRANT OF ANY LICENCES IN PURSUANCE OF 3 ( E ) ( XIII ) OF I ABOVE , TOGETHER WITH THE TERMS THEREOF ;

( F ) THE CONCLUSION BETWEEN THE PARTIES DURING THE PERIOD OF THE NOTIFIED AGREEMENT OF ANY AGREEMENTS FOR JOINT COOPERATION BETWEEN THEM IN THE DEVELOPMENT , MANUFACTURE OR SALE OF ANY PRODUCT OF WHATEVER KIND WITHIN THE FIELDS OF POWER ENGINEERING AND/OR LIQUID METAL TECHNOLOGY , BUT NOT ( UNLESS OTHERWISE NOTIFIABLE ) SUCH AGREEMENTS PRINCIPALLY RELATING TO FOUNDRY PROCESSES . FOR THE PURPOSE OF THIS PARAGRAPH , THE EXPRESSION ' PARTIES ' SHALL INCLUDE ALSO THE FUTURE SUBSIDIARY COMPANIES OF RESPECTIVELY THE WEIR GROUP LTD AND THE GENERAL ELECTRIC COMPANY LTD , ANY CORPORATION WHICH MAY CONTROL EITHER OF THEM AND ANY SUBSIDIARY COMPANY OF SUCH CORPORATION .

( G ) THE CONCLUSION OF ANY AGREEMENT OR ARRANGEMENT WHICH AMENDS , REPLACES , SUPERSEDES OR ANNULS THE NOTIFIED AGREEMENT , AS AMENDED ON 30 SEPTEMBER 1977 ; ANY JOINT ACTIVITY BY THE PARTIES RELATING TO SODIUM CIRCULATORS OUTSIDE THE TERMS OF THE NOTIFIED AGREEMENT ,

HAS ADOPTED THIS DECISION :