EUR-Lex - 31978D0696 - EN

(d) The provision of the old conditions of sale under consideration appreciably restricted competition within the common market.

The creation of obstacles to trade between Member States on the basis of export prohibition of the type under consideration hinders the establishment of a single market among Member States and prevents actual and potential competition on the part of dealers affected by such prohibition. Although the quantities of Bell's whisky which were being sold by Bell itself or through distributors in EEC countries other than the United Kingdom are currently relatively small, the provision in question impeded potential exports of large quantities of the product in question on the part of numerous trade customers and subsequent purchasers.

In this respect the share of the market in Scotch whisky or whisky from all sources held by Bell in the United Kingdom is of direct relevance. Bell holds around ... % of these markets and therefore the export prohibition under consideration restricted to an appreciable extent otherwise available supplies of whisky for dealers and consumers in other EEC countries.

That the prohibition applied only to sales of under bond Bell's Scotch whisky, which has represented only ... % of total sales of Scotch whisky in the United Kingdom, is not a relevant consideration. The prohibition to export affected potentially all Bell's sales in the United Kingdom which, if intended for export, would have to be made under bond.

Concerning the position of the parties who were affected by Bell's restrictive conditions, the export prohibition prevented all 2 400 trade customers from exporting and competing with the numerous dealers in whisky in other EEC countries. Many of these trade customers are of considerable importance and were willing and able to engage in export activities and also numerous dealers in other EEC countries were potential buyers of Scotch whisky resold by United Kingdom trade customers.

Also relevant is the importance of the commercial position held by Bell, whose turnover has been substantial.

The non-exportation provision contained in the old conditions of sale cannot therefore be considered as having had such insignificant effect on competition within the common market as to leave it outside the prohibition of Article 85 (1).

(e) The direct export prohibition contained in the old conditions of sale was likely to affect trade between Member States.

The restriction by its nature was likely to affect trade between Member States, since it prevented trade by trade customers from the United Kingdom to other EEC Member States. It caused an artificial partitioning of the common market and hindered the establishment of a single market among Member States. In this case, it had a direct, actual and potential influence on the pattern of trade between Member States since it prevented exports by trade customers and their subsequent purchasers of a product which is already distributed and established in EEC countries other than the United Kingdom. Furthermore, in the light of the considerations set out under (d) above, the provision in question was capable of affecting trade within Member States to an appreciable extent.

The provision referred to above and contained in the conditions of sale applied by Bell until 14 October 1977 therefore amounted to an infringement of Article 85 (1) from at least 1 January 1973 to 14 October 1977.

1. Inapplicability of Article 85 (3) of the EEC Treaty

Under the terms of Article 85 (3), the provisions of Article 85 (1) may be declared inapplicable in the case of any agreement between undertakings which contributes to the improvement of the production or distribution of goods or to the promotion of technical or economic progress while reserving to users an equitable share in the profit resulting therefrom, and which: - neither imposes on the undertakings concerned any restrictions not indispensable to the attainment of the above objectives,

• nor enables such undertakings to eliminate competition in respect of a substantial proportion of the goods concerned.

Pursuant to Articles 4 and 25 of Regulation No 17, agreements should be notified in order to qualify for the application of an exemption under Article 85 (3), unless they fall within the categories of agreements described under Article 4 (2), in particular agreements where the only parties thereto are undertakings from one Member State and which do not relate to exports between Member States (Article 4 (2) (1)).

The old conditions of sale were not exempt from notification pursuant to Article 4 (2) (1) of Regulation No 17 because, although they were contained in a series of agreements between undertakings from one Member State, namely the United Kingdom, they did relate to exports between Member States.

Further, the old conditions of sale have not been formally notified in accordance with the provisions of Commission Regulation No 27 (1), but merely communicated to the Commission at its request.

The old conditions of sale cannot therefore benefit from an exemption under Article 85 (3).

III. APPLICABILITY OF ARTICLE 3 (1) OF COUNCIL REGULATION No 17

Under the terms of Article 3 (1) of Council Regulation No 17, where the Commission, upon application or upon its own initiative, finds that there is an infringement of Article 85 of the Treaty, it may by decision require the undertakings concerned to bring such infringement to an end.

The Commission has noted that Bell has withdrawn the explicit export prohibition towards EEC countries which was contained in the old conditions of sale applied by Bell until 14 October 1977. The Commission requires that Bell should refrain from any further action by means of their sales conditions calculated to restrict the exportation from the United Kingdom to other EEC countries of their Scotch whisky bought by trade customers. This applies, in particular, to any action on Bell's part to restrict under bond sales of Scotch whisky, (1)OJ No 35, 10.5.1962, p. 1118/62.

HAS ADOPTED THIS DECISION: