EUR-Lex - 31978D0253 - EN

4 . THE OBLIGATION TO SUPPLY THE ORIGINAL ITALIAN PRODUCT TO DIPLOMATIC CORPS , SHIP'S VICTUALLERS , FOREIGN ARMED FORCES AND GENERALLY SPEAKING ALL ORGANIZATIONS WITH DUTY-FREE FACILITIES PREVENTS THE LICENSEES FROM SUPPLYING BITTER WHICH THEY HAVE MANUFACTURED THEMSELVES TO THESE CONSUMERS . IN VIEW OF THE LICENSEES' PRODUCTION CAPACITIES , THIS RESTRICTION ALSO HAS AN APPRECIABLE EFFECT .

B . THE EXCLUSIVE RIGHTS GRANTED BY CAMPARI-MILANO PREVENT CAMPARI-MILANO FROM GRANTING OTHER LICENCES WHICH WOULD ENABLE OTHER PARTIES TO USE ITS TRADEMARKS IN THE ALLOTTED TERRITORIES AND TO EXPORT FROM THESE TERRITORIES TO OTHER PARTS OF THE COMMON MARKET . THEY ALSO PREVENT CAMPARI-MILANO ITSELF FROM MANUFACTURING BITTER IN THESE TERRITORIES AND CONSEQUENTLY FROM EXPORTING FROM SUCH TERRITORIES . THE EXCLUSION OF COMPETING PRODUCTS PREVENTS THE LICENSEES FROM MARKETING SUCH PRODUCTS ACROSS BORDERS BETWEEN MEMBER STATES , OR FROM MAKING LICENCE AGREEMENTS IN RELATION TO SUCH PRODUCTS WITH UNDERTAKINGS IN OTHER MEMBER STATES . THE BAN ON ENGAGING IN AN ACTIVE SALES POLICY OUTSIDE THEIR RESPECTIVE TERRITORIES PREVENTS CAMPARI-MILANO AND ITS LICENSEES FROM FREELY DISPOSING THROUGHOUT THE COMMON MARKET OF THE BITTER THEY HAVE MANUFACTURED , RESTRICTING THEM TO THEIR EXCLUSIVE TERRITORIES , AND THUS AFFECTS INTERNATIONAL TRADE IN THE PRODUCT . THE OBLIGATION TO SUPPLY CERTAIN CONSUMERS WITH THE ORIGINAL ITALIAN PRODUCT RATHER THAN THAT WHICH THEY THEMSELVES MANUFACTURE MEANS THAT THE LICENSEES HAVE TO OBTAIN SUPPLIES OF BITTER CAMPARI FROM ITALY AND THUS AFFECTS INTERNATIONAL TRADE IN THE PRODUCT .

THESE RESTRICTIONS MUST BE REGARDED AS LIABLE TO AFFECT TRADE BETWEEN MEMBER STATES INASMUCH AS THEIR EFFECT IS THAT TRADE BETWEEN MEMBER STATES DEVELOPS OTHERWISE THAN IT WOULD HAVE DONE WITHOUT THEM , UNTIL AT THE SAME TIME THEY HAVE A SUBSTANTIAL DEGREE OF INFLUENCE ON MARKET CONDITIONS .

THE AGREEMENTS ARE THEREFORE CAUGHT BY ARTICLE 85 ( 1 ) OF THE TREATY .

C . THE OTHER PROVISIONS OF THE AGREEMENTS ENTERED INTO BY CAMPARI-MILANO AND ITS LICENSEES ARE NOT IN THIS CASE COVERED BY ARTICLE 85 ( 1 ) , BECAUSE THEY HAVE NEITHER THE OBJECT NOR THE EFFECT OF APPRECIABLY RESTRICTING COMPETITION WITHIN THE COMMON MARKET . THIS IS SO FOR THE FOLLOWING PROVISIONS , IN PARTICULAR ,

• THE OBLIGATION UPON EACH LICENSEE TO REFRAIN FROM EXPORTING BITTER CAMPARI DIRECTLY OR INDIRECTLY OUTSIDE THE COMMON MARKET . IT IS TRUE THAT THIS OBLIGATION NOT ONLY ELIMINATES THE FREEDOM OF THE LICENSEES AND THEIR TRADE CUSTOMERS TO DO BUSINESS IN THE RELEVANT PRODUCT OUTSIDE THE EEC , BUT ALSO PREVENTS ANY DISTRIBUTOR IN A NON-MEMBER COUNTRY FROM BUYING THE PRODUCT FROM THE LICENSEES OR FROM A PREVIOUS PURCHASER FOR RESALE IN THE COMMON MARKET . HOWEVER , ANY PURCHASER WITHIN THE COMMUNITY MAY OBTAIN SUPPLIES OF THE PRODUCTS COVERED BY THE AGREEMENTS NOT ONLY DIRECTLY FROM THE LICENSEE ON HIS OWN TERRITORY BUT ALSO , DIRECTLY OR INDIRECTLY , FROM OTHER LICENSEES OR FROM CAMPARI-MILANO ITSELF . GIVEN THESE POSSIBILITIES , REIMPORTATION INTO THE COMMON MARKET OF BITTER PREVIOUSLY EXPORTED OUTSIDE THE COMMUNITY BY LICENSEES OR THEIR TRADE CUSTOMERS WOULD SEEM UNLIKELY , IN VIEW OF SUPPLEMENTARY ECONOMIC FACTORS SUCH AS THE ACCUMULATION OF TRADE MARGINS AND OF EXCISE DUTIES AND TAXES ON ALCOHOL LEVIED BY IMPORTING COUNTRIES AS WELL AS THE DUTIES CHARGED ON CROSSING THE EUROPEAN ECONOMIC COMMUNITY BORDERS . THIS ASSESSMENT ALSO APPLIES TO STATES WITH WHICH THE EEC HAS ENTERED INTO FREE TRADE AGREEMENTS , PARTICULARLY AS TRADE BETWEEN THE COMMUNITY AND THESE STATES IN ALCOHOLIC BEVERAGES SUCH AS BITTER CAMPARI IS STILL SUBJECT TO CUSTOMS DUTIES ,

• RESTRICTIONS OF THE LICENCE TO THOSE PLANTS WHICH ARE CAPABLE OF GUARANTEEING THE QUALITY OF THE PRODUCT . THE EFFECT OF THIS RESTRICTION ON THE LICENSEES' FREEDOM OF CHOICE DOES NOT GO BEYOND A LEGITIMATE CONCERN FOR QUALITY CONTROL ; FURTHER , THIS OBLIGATION UPON THE LICENSEES DOES NOT CONSTITUTE AN ABSOLUTE LIMITATION OF PRODUCTION TO ANY PARTICULAR PLACE , SINCE IT ONLY GIVES CAMPARI-MILANO THE RIGHT TO OPPOSE A CHANGE IN THE PLACE OF MANUFACTURE IN CASES WHERE THE NEW ESTABLISHMENT PROPOSED MIGHT ADVERSELY AFFECT THE QUALITY OF THE PRODUCTS ; THIS TYPE OF AGREEMENT AS TO QUALITY CONTROL IS VERY IMPORTANT FOR THE LICENSOR , SINCE THE MAINTENANCE OF QUALITY IS REFERABLE TO THE EXISTENCE OF THE TRADEMARK RIGHT ,

• THE LICENSEES ARE OBLIGED TO FOLLOW THE LICENSOR'S INSTRUCTIONS RELATING TO THE MANUFACTURE OF THE PRODUCT AND THE QUALITY OF THE INGREDIENTS , AND TO BUY CERTAIN SECRET RAW MATERIALS FROM THE LICENSOR ITSELF . HERE AGAIN , CONTROL OVER THE QUALITY OF THE PRODUCTS MANUFACTURED UNDER LICENCE AND OVER THEIR SIMILARITY TO THE ORIGINAL ITALIAN PRODUCT IS IN THE PRESENT CASE VERY IMPORTANT FOR THE LICENSOR , IN THE SENSE THAT IT IS AGAIN BOUND UP WITH ITS INTEREST IN THE MAINTENANCE OF QUALITY , WHICH IS REFERABLE TO THE EXISTENCE OF THE TRADEMARK RIGHT . ACCORDING TO INFORMATION PROVIDED BY THE PARTIES , THE STANDARDS ENFORCED DO NOT OBLIGE THE LICENSEES TO OBTAIN SUPPLIES OF ALBUMIN OR BITTER ORANGE ESSENCE FROM ANY PARTICULAR SOURCE , BUT ONLY TO CHOOSE BETWEEN DIFFERENT PRODUCTS ON THE BASIS OF OBJECTIVE QUALITY CONSIDERATIONS . THIS DOES NOT , HOWEVER , APPLY TO THE COLOURING MATTER AND THE HERBAL MIXTURES , WHERE THE LICENSOR'S LEGITIMATE CONCERN TO ENSURE THAT THE PRODUCT MANUFACTURED UNDER LICENCE HAS THE SAME QUALITY AS THE ORIGINAL PRODUCT CAN BE PROTECTED ONLY IF THE LICENSEES OBTAIN ALL THEIR SUPPLIES FROM IT . THE COMPOSITION OF THE PRODUCTS IN QUESTION WHICH IS THE FACTOR THAT DETERMINES THE PARTICULAR CHARACTERISTICS OF BITTER CAMPARI IS A TRADE SECRET WHICH THE LICENSOR CANNOT BE REQUIRED UNDER COMMUNITY LAW TO REVEAL TO ITS LICENSEES ,

• THE LICENSEES ARE REQUIRED TO REFRAIN FROM DIVULGING THE MANUFACTURING PROCESSES TO THIRD PARTIES . THIS OBLIGATION IS ESSENTIAL IF SECRET TECHNIQUES OR RECIPES ARE TO BE PASSED ON FOR USE BY OTHER UNDERTAKINGS ,

• THE LICENSEES ARE OBLIGED TO MAINTAIN CONTINUOUS CONTACT WITH CUSTOMERS AND TO SPEND A STANDARD MINIMUM SUM ON ADVERTISING BITTER CAMPARI . IN THE PRESENT CASE THERE IS NOTHING TO SUGGEST THAT THE AMOUNT OF THE SUM IN QUESTION WOULD PREVENT THE LICENSEES FROM ENGAGING IN OTHER ACTIVITIES OR CARRYING ON THEIR OWN ADVERTISING ALSO ,

• THE LICENSEES ARE PROHIBITED FROM ASSIGNING THE BENEFIT OF THE AGREEMENT . BY BANNING ASSIGNMENTS , THE LICENSOR IS SIMPLY SAFEGUARDING ITS FREEDOM TO SELECT ITS LICENSEES . WHEN IT ENTERS INTO AN AGREEMENT THE IDENTITY OF THE OTHER PARTY IS HIGHLY MATERIAL TO IT AND IT MUST REMAIN FREE TO DECIDE WITH WHOM IT WILL DEAL .

III . APPLICABILITY OF ARTICLE 85 ( 3 ) OF THE EEC TREATY

UNDER ARTICLE 85 ( 3 ) THE PROVISIONS OF ARTICLE 85 ( 1 ) MAY BE DECLARED INAPPLICABLE TO AGREEMENTS BETWEEN UNDERTAKINGS WHICH CONTRIBUTE TO IMPROVING THE PRODUCTION AND DISTRIBUTION OF GOODS OR TO PROMOTING TECHNICAL OR ECONOMIC PROGRESS , WHILE ALLOWING CONSUMERS A FAIR SHARE OF THE RESULTING BENEFIT , AND WHICH DO 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 .

A . THE RESTRICTIONS ON COMPETITION MENTIONED AT POINTS 1 TO 4 OF ITEM II A SATISFY THE TESTS OF ARTICLE 85 ( 3 ) .

1 . THE EXCLUSIVITY GRANTED BY CAMPARI-MILANO CONTRIBUTES TO IMPROVING THE PRODUCTION AND DISTRIBUTION OF THE PRODUCTS . BY GIVING EACH LICENSEE A GUARANTEE THAT NO OTHER UNDERTAKING WILL OBTAIN A LICENCE WITHIN ITS ALLOCATED TERRITORY , AND THAT IN THIS TERRITORY NEITHER CAMPARI-MILANO NOR ANY OTHER LICENSEE MAY MANUFACTURE PRODUCTS BEARING THE LICENSOR'S TRADEMARK THIS COMMITMENT CONFERS UPON EACH LICENSEE AN ADVANTAGE IN ITS ALLOTTED TERRITORY . THIS TERRITORIAL ADVANTAGE IS SUCH AS TO PERMIT A SUFFICIENT RETURN ON THE INVESTMENT MADE BY EACH LICENSEE FOR THE PURPOSE OF MANUFACTURING THE PRODUCT BEARING THE TRADEMARK UNDER CONDITIONS ACCEPTABLE TO THE LICENSOR AND HOLDER OF THE TRADEMARK , AND IT ENABLES THE LICENSEE TO INCREASE ITS PRODUCTION CAPACITY AND CONSTANTLY TO IMPROVE THE ALREADY LONG ESTABLISHED DISTRIBUTION NETWORK .

IN PRACTICE THE EXCLUSIVITY GRANTED HAS ALLOWED EACH LICENSEE TO IMPROVE ITS EXISTING PLANT AND TO BUILD NEW PLANT . IT HAS ALSO ENABLED EACH LICENSEE TO STRENGTHEN ITS EFFORTS TO PROMOTE THE BRAND , DOUBLING THE TOTAL VOLUME OF SALES IN THE BENELUX COUNTRIES AND GERMANY OVER THE LAST SIX YEARS , AND , BY ESTABLISHING A MULTISTAGE DISTRIBUTION NETWORK , TO SECURE A CONSTANTLY INCREASING NUMBER OF CUSTOMERS AND THUS TO ENSURE SUPPLIES THROUGHOUT THE ALLOTTED TERRITORY .

2 . THE BAN ON DEALING IN COMPETING PRODUCTS ALSO CONTRIBUTES TO IMPROVING DISTRIBUTION OF THE LICENSED PRODUCTS BY CONCENTRATING SALES EFFORTS , ENCOURAGING THE BUILD-UP OF STOCKS AND SHORTENING DELIVERY TIMES .

THE RESTRICTION ON THE LICENSEES' FREEDOM TO DEAL IN OTHER PRODUCTS AT THE SAME TIME AS THE PRODUCTS HERE IN QUESTION PREVENTS THE LICENSEES FROM NEGLECTING CAMPARI IN THE EVENT OF CONFLICT BETWEEN THE PROMOTION OF CAMPARI SALES AND POSSIBLE INTEREST IN ANOTHER PRODUCT . ALTHOUGH A NON-COMPETITION CLAUSE IN A LICENSING AGREEMENT CONCERNING INDUSTRIAL PROPERTY RIGHTS BASED ON THE RESULT OF A CREATIVE ACTIVITY , SUCH AS A PATENT , WOULD CONSTITUTE A BARRIER TO TECHNICAL AND ECONOMIC PROGRESS BY PREVENTING THE LICENSEES FROM TAKING AN INTEREST IN OTHER TECHNIQUES AND PRODUCTS , THIS IS NOT THE CASE WITH THE LICENSING AGREEMENTS UNDER CONSIDERATION HERE . THE AIM PURSUED BY THE PARTIES , AS IS CLEAR FROM THE AGREEMENTS TAKEN AS A WHOLE , IS TO DECENTRALIZE MANUFACTURE WITHIN THE EEC AND TO RATIONALIZE THE DISTRIBUTION SYSTEM LINKED TO IT , AND THUS TO PROMOTE THE SALE OF CAMPARI-MILANO'S BITTER , MANUFACTURED FROM THE SAME CONCENTRATES PROVIDED BY CAMPARI-MILANO , ACCORDING TO THE SAME MIXING PROCESS AND USING THE SAME INGREDIENTS , AND BEARING THE SAME TRADEMARK , AS THAT OF THE LICENSOR .

THE PROHIBITION ON DEALING IN COMPETING PRODUCTS , THEREFORE , MAKES FOR IMPROVED DISTRIBUTION OF THE RELEVANT PRODUCT IN THE SAME WAY AS DO EXCLUSIVE DEALING AGREEMENTS CONTAINING A SIMILAR CLAUSE , WHICH ARE AUTOMATICALLY EXEMPTED BY REGULATION NO 67/67/EEC ( 2 ) ; A DECLARATION THAT THE PROHIBITION IN ARTICLE 85 ( 1 ) IS INAPPLICABLE TO THIS CLAUSE IS ACCORDINGLY JUSTIFIED .

3 . DISTRIBUTION WILL ALSO BE IMPROVED BY THE PROHIBITION AGAINST THE PARTIES ENGAGING IN AN ACTIVE SALES POLICY OUTSIDE THEIR RESPECTIVE TERRITORIES . THIS RESTRICTION ON THE LICENSEES WILL HELP TO CONCENTRATE THEIR SALES EFFORTS , AND PROVIDE A BETTER SUPPLY TO CONSUMERS IN THEIR TERRITORIES FOR WHICH THEY HAVE PARTICULAR RESPONSIBILITY , WITHOUT PREVENTING BUYERS ELSEWHERE IN THE COMMUNITY FROM SECURING SUPPLIES FREELY FROM ANY OF THE LICENSEES . APPLICATION OF THE SAME RESTRICTION TO CAMPARI-MILANO ENCOURAGES THE EFFORTS MADE BY THE EACH TERRITORY ALLOTTED ; THE LICENSEES THUS HAVE THE BENEFIT OF A CERTAIN PROTECTION RELATIVE TO CAMPARI-MILANO'S STRONG MARKET POSITION .

4 . THE OBLIGATION ON LICENSEES TO SUPPLY THE ORIGINAL ITALIAN PRODUCT RATHER THAN THAT WHICH THEY THEMSELVES MANUFACTURE , WHEN SELLING TO DIPLOMATIC CORPS , SHIPS' VICTUALLERS , FOREIGN ARMED FORCES AND GENERALLY SPEAKING ALL ORGANIZATIONS WITH DUTY-FREE FACILITIES ALSO HELPS TO PROMOTE SALES OF CAMPARI-MILANO'S BITTER . BY RESTRICTING LICENSEES' FREEDOM TO SUPPLY THE PRODUCTS THEY MANUFACTURE THEMSELVES IT MAKES SURE THAT PARTICULAR CATEGORIES OF CONSUMERS , WHO ARE DEEMED TO BE OUTSIDE THE LICENSEE'S TERRITORY AND ARE USUALLY REQUIRED TO MOVE FREQUENTLY FROM ONE TERRITORY TO ANOTHER , CAN ALWAYS PURCHASE THE SAME ORIGINAL PRODUCT WITH ALL ITS TRADITIONAL FEATURES AS REGARDS BOTH COMPOSITION AND OUTWARD APPEARANCE . EVEN THOUGH QUALITY STANDARDS ARE OBSERVED , IT IS IMPOSSIBLE IN PARTICULAR TO AVOID DIFFERENCES IN TASTE BETWEEN THE PRODUCTS OF THE VARIOUS MANUFACTURERS . THIS OBLIGATION IS THUS DESIGNED TO PREVENT THESE CONSUMERS FROM TURNING TO OTHER COMPETING PRODUCTS AND TO ENSURE THAT THEY CONTINUE TO BUY BITTER CAMPARI , WITH THE FACILITY OF BEING ABLE TO OBTAIN STOCKS FROM THEIR LOCAL DEALER . FURTHER , SUCH CONSUMERS ARE NOT PREVENTED FROM FREELY OBTAINING THE LICENSEES' OWN PRODUCTS EVEN THOUGH ANY SUCH PURCHASES WOULD BE ON THE NORMAL TRADING CONDITIONS APPLICABLE TO NON-DUTYFREE PURCHASERS .

B . THE LICENSING AGREEMENTS HAVE INCREASED THE QUANTITIES OF BITTER CAMPARI AVAILABLE TO CONSUMERS AND IMPROVED DISTRIBUTION , SO THAT CONSUMERS BENEFIT DIRECTLY . THERE ARE OTHER PRODUCERS OF BITTER ON THE MARKET , AND EFFECTIVE COMPETITION WILL BE STRENGTHENED BY THE GROWING QUANTITIES PRODUCED BY CAMPARI-MILANO'S LICENSEES , SO THAT IT CAN BE ASSUMED THAT THE IMPROVEMENTS RESULTING FROM THE AGREEMENTS AND THE BENEFITS WHICH THE LICENSEES OBTAIN FROM THEM ARE SHARED BY CONSUMERS .

AS BUYERS MAY SECURE SUPPLIES OF BITTER FROM OTHER TERRITORIES THROUGH UNSOLICITED ORDERS , THEY ARE IN A POSITION TO EXERT PRESSURE ON THE PRICES CHARGED BY THE EXCLUSIVE LICENSEE IN THEIR TERRITORY IF THESE SHOULD BE TOO HIGH .

C . THE RESTRICTIONS OF COMPETITION IMPOSED ON THE PARTIES INVOLVED MUST BE CONSIDERED INDISPENSABLE TO THE ATTAINMENT OF THE BENEFITS SET OUT ABOVE . NONE OF THE RESTRICTIONS COULD BE OMITTED WITHOUT ENDANGERING THE PARTIES' OBJECT OF PROMOTING SALES OF BITTER CAMPARI BY CONCENTRATING THE ACTIVITIES OF THE LICENSEES ON THIS PRODUCT AND OFFERING THE SAME ORIGINAL PRODUCT TO CERTAIN CUSTOMERS . IN PARTICULAR , NONE OF THE LICENSEES AND IN ALL PROBABILITY NO OTHER UNDERTAKING IN THE SPIRITUOUS LIQUORS INDUSTRY WOULD HAVE BEEN PREPARED TO MAKE THE INVESTMENT NECESSARY FOR A SIGNIFICANT INCREASE IN SALES OF BITTER IF IT WERE NOT SURE OF BEING PROTECTED FROM COMPETITION FROM OTHER LICENSEES OR CAMPARI-MILANO ITSELF .

D . THE LICENSING AGREEMENTS WHICH ARE THE SUBJECT OF THIS DECISION DO NOT GIVE CAMPARI-MILANO OR ITS LICENSEES THE POSSIBILITY OF ELIMINATING COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE BITTER PRODUCTS IN QUESTION . IN THE EEC THERE EXISTS A FAIRLY LARGE NUMBER OF OTHER WELL-KNOWN BRANDS OF BITTER , WHICH ARE ALL ABLE TO COMPETE AGAINST BITTER CAMPARI , CAMPARI-MILANO'S LICENSEES AND CAMPARI-MILANO ITSELF ARE ALSO FREE TO SELL THE CAMPARI PRODUCTS IN QUESTION WITHIN THE COMMON MARKET BUT OUTSIDE THEIR TERRITORY FOR WHICH THEY HAVE PARTICULAR RESPONSIBILITY .

AS THINGS STAND AT PRESENT , ALL THE TESTS FOR A DECISION APPLYING ARTICLE 85 ( 3 ) TO THE LICENSING AGREEMENTS ENTERED INTO BY CAMPARI-MILANO WITH OGNIBENI AND CO . , HANS PRANG , CAMPARI-FRANCE SA , SOVINAC SA AND JOHS . M . KLEIN AND CO . ARE SATISFIED .

IV . APPLICATION OF ARTICLES 6 , 7 AND 8 OF REGULATION NO 17

1 . IN THE FORM IN WHICH THEY WERE ORIGINALLY NOTIFIED TO THE COMMISSION AND WHICH PROMPTED THE STATEMENT OF OBJECTIONS ( SEE ITEM I . B ABOVE ) , THE FIVE LICENSING AGREEMENTS ENTERED INTO BY CAMPARI-MILANO DID NOT SATISFY THE TESTS OF ARTICLE 85 ( 3 ) . THE CLAUSES LISTED ABOVE , CONTAINED IN THE AGREEMENT THEN IN FORCE , SIGNIFICANTLY RESTRICTED COMPETITION , AND THE RESTRICTIONS COULD NOT BE CONSIDERED AS BEING REFERABLE TO THE EXISTENCE OF THE LICENSED TRADEMARKS , OR AS CONTRIBUTING TO THE PRODUCTION OR DISTRIBUTION OF THE PRODUCTS OR TO PROMOTING TECHNICAL OR ECONOMIC PROGRESS . THE CLAUSES WHICH PREVENTED APPLICATION OF ARTICLE 85 ( 3 ) WERE DELETED ON 1 NOVEMBER 1977 AT THE COMMISSION'S REQUEST . IT IS THEREFORE POSSIBLE , UNDER ARTICLE 6 ( 1 ) OF REGULATION NO 17 , FOR THE DECISION APPLYING ARTICLE 85 ( 3 ) TO TAKE EFFECT FROM THE DATE ON WHICH THE AGREEMENTS WERE AMENDED , WHICH IS TO SAY 1 NOVEMBER 1977 .

IN DETERMINING THE PERIOD OF VALIDITY OF THE DECISION , AS REQUIRED BY ARTICLE 8 ( 1 ) OF REGULATION NO 17 , ACCOUNT SHOULD BE TAKEN OF THE FACT THAT THE RESTRICTIONS ON COMPETITION COVERED BY THIS DECISION DO NOT PREVENT THE FREE MOVEMENT OF THE GOODS IN QUESTION BETWEEN EEC MEMBER STATES , AND IN PARTICULAR THAT THE PARTIES HAVE UNDERTAKEN , AS FROM 1 NOVEMBER 1977 , TO DO EVERYTHING POSSIBLE TO MEET UNSOLICITED ORDERS FROM WITHIN THE EEC . THE PERIOD ALLOWED MUST BE SUFFICIENT TO PERMIT THE AMENDED AGREEMENTS TO PRODUCE THE EFFECTS INTENDED ; A PERIOD OF NINE YEARS WOULD SEEM REASONABLE .

2 . THE EXCLUSIVE LICENSING AGREEMENTS ENTERED INTO BY CAMPARI-MILANO WITH OGNIBENI AND CO . , HANS PRANG , CAMPARI FRANCE SA , AND SOVINAC SA SATISFY THE TESTS OF ARTICLE 7 ( 1 ) OF REGULATION NO 17 .

THE AGREEMENTS WERE IN EXISTENCE AT THE DATE OF ENTRY INTO FORCE OF REGULATION NO 17 ON 13 MARCH 1962 , ALTHOUGH THE AGREEMENT WITH SOVINAC SA EXISTED IN A PREVIOUS VERSION TO THAT WHICH WAS NOTIFIED . THE AGREEMENTS WERE NOTIFIED WITHIN THE PERIODS PROVIDED FOR UNDER ARTICLE 5 ( 1 ) OF REGULATION NO 17 . THEY DID NOT AT THAT TIME SATISFY THE TESTS OF ARTICLE 85 ( 3 ) , BUT HAVE SINCE BEEN AMENDED SO THAT THEY DO SATISFY THOSE REQUIREMENTS , AS HAS BEEN EXPLAINED ABOVE .

AS REGARDS THE AGREEMENTS IN THEIR VERSION BEFORE AMENDMENT , THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ) APPLIES ONLY FOR A PERIOD FIXED BY THE COMMISSION . THE COMMISSION MUST TAKE INTO ACCOUNT THE FACT THAT THE PARTIES SPONTANEOUSLY AMENDED THE AGREEMENTS , OR AGREED TO AMEND THEM , IN ACCORDANCE WITH SUGGESTIONS MADE BY THE COMMISSION . THESE CIRCUMSTANCES JUSTIFY EXEMPTION FROM THE PROHIBITION OF ARTICLE 85 ( 1 ) FOR THE WHOLE OF THE PERIOD PRECEDING THE EFFECTIVE DATE OF THE DECISION DECLARING ARTICLE 85 ( 1 ) INAPPLICABLE TO ALL OF THE AGREEMENTS .

THE PRECEDING OBSERVATIONS APPLY ALSO IN THE CASE OF THE AGREEMENT OF 14 APRIL 1966 WITH JOHS . M . KLEIN AND CO . AN EXPORT BAN IMPOSED ON A FIRM ESTABLISHED IN A COUNTRY OUTSIDE THE EEC AND AIMED AGAINST DELIVERIES INTO THE EEC CAN CONSTITUTE A RESTRICTION OF COMPETITION CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES . HOWEVER , IN THE PRESENT CASE SUCH A BAN WAS NOT AN APPRECIABLE RESTRICTION BEFORE DENMARK JOINED THE EEC BECAUSE THE DIFFICULTIES OF IMPORTATION ARISING FROM CUSTOMS AND TAX REGULATIONS IN PRACTICE PREVENTED EXPORTS OF BITTER CAMPARI TO THE COMMUNITY . ACCORDINGLY , PURSUANT TO ARTICLE 25 OF REGULATION 17 , THE AGREEMENT MADE BETWEEN CAMPARI-MILANO AND JOHS . M . KLEIN AND CO . AND DULY NOTIFIED ON 27 JUNE 1973 ALSO SATISFIES THE CONDITIONS FOR APPLICATION OF ARTICLE 7 ( 1 ) OF THAT REGULATION .

3 . IN VIEW OF THE IMPORTANCE AND INTERNATIONAL REPUTATION OF THE CAMPARI BRAND , OF THE RESTRICTIVE EFFECTS ON THE CIRCULATION OF BITTER CAMPARI BETWEEN MEMBER STATES RESULTING FROM EXISTING NATIONAL LEGISLATION , AND LASTLY THE FACT THAT EXPORTS BY MANUFACTURERS OF BITTER CAMPARI OR BY THEIR CUSTOMERS DEPEND ULTIMATELY ON THE WILLINGNESS OF THE MANUFACTURERS THEMSELVES , THE COMMISSION SHOULD HAVE THE OPPORTUNITY TO ASSESS IN GOOD TIME THE SITUATION RESULTING FROM THE AMENDED AGREEMENTS ON THE RELEVANT MARKET . CONSEQUENTLY , IN ACCORDANCE WITH ARTICLE 8 ( 1 ) OF REGULATION NO 17 , CAMPARI-MILANO AND EACH OF ITS LICENSEES SHOULD BE REQUIRED TO SEND TO THE COMMISSION ANNUALLY , BEGINNING ON 15 DECEMBER 1978 , A REPORT CONTAINING ALL INFORMATION NECESSARY FOR AN ASSESSMENT OF DEVELOPMENTS RESULTING FROM THE APPLICATION OF THE AGREEMENTS , ESPECIALLY FROM THE POINT OF VIEW OF THE FREE MOVEMENT OF BITTER WITHIN THE EEC . THIS APPLIES IN PARTICULAR TO EXPORTS WITHIN THE COMMUNITY .

ARRANGEMENTS SHOULD ALSO BE MADE TO ENSURE THAT THE COMMISSION IS INFORMED OF ANY AWARDS MADE UNDER THE ARBITRATION CLAUSE , AS THERE IS A RISK THAT THE AGREEMENTS MIGHT BE INTERPRETED WITHOUT REGARD FOR THIS DECISION , SO THAT THE COMMISSION MIGHT HAVE TO AMEND IT . THERE IS A GREATER RISK AT ARBITRATION THAN IN THE ORDINARY COURTS THAT INTERPRETATION OF THE AGREEMENT MAY GO BEYOND THE LIMITS IMPOSED BY THE EXEMPTION , PARTICULARLY WHERE THE ARBITRATORS , WHOSE FUNCTION , AS IN THIS CASE , IS TO PRODUCE AN AMICABLE SETTLEMENT , ARE NOT BOUND BY THE SUBSTANTIVE LAW . FURTHERMORE , REVIEW OF ARBITRAL AWARDS FOR THEIR COMPATIBILITY WITH ARTICLES 85 AND 86 , INASMUCH AS THESE FAIL TO BE REGARDED AS PART OF EEC PUBLIC POLICY IS NOT NECESSARILY AVAILABLE IN NON-MEMBER STATES ,

HAS ADOPTED THIS DECISION :