C —Submissions concerning the non-application of Article 85 (3) of the Treaty
This submission, which is relied upon by all the applicants, is based on the view that the Agreement was exempt from the requirement of notification under Article 4 (2) of Regulation No 17. In those circumstances the Commission could not have refused to apply Article 85(3) on the ground that the Agreement had not been notified in accordance with Article 4 (1) or 5 (1) of that regulation. The Decision also infringes Article 190 of the Treaty inasmuch as it does not state the reasons for which the Agreement was incapable of qualifying for exemption under Article 85 (3) of the Treaty.(a) All the applicants point out, in that regard, that the Agreement satisfies the two conditions laid down by Article 4 (2) of Regulation No 17 for exemption from the requirement of notification, namely that the only parties to the agreement must be undertakings from one Member State and that the agreement must not relate either to imports or to exports between Member States.As regards the first condition, the applicants acknowledge that the subsidiary of a company incorporated under German law, namely the Belgian establishment BBC Hausgeräte GmbH, is also a party to the Agreement. However they contend that although that establishment has no legal personality of its own, it must be regarded as an undertaking, in view of the fact that it enjoys considerable autonomy from its German parent company. In any event the Commission itself treated it as an undertaking by referring to “BBC Hausgeräte GmbH (suce, beige)” when it notified both the statement of objections and the Decision to it.In that connection the applicants observe that Article 4 (2) of Regulation No 17 is concerned not with the legal form selected but with the question whether or not a subsidiary constitutes an economic entity in its own right. The Court adopted that position in its judgment of 31 October 1974 in Case 15/74 Centrafarm [1974] ECR 1147 when it held that the undertakings covered by Article 85 of the EEC Treaty need not necessarily correspond to legal persons under national law.As regards the condition that the Agreement must not relate either to imports or to exports between Member States, all the applicants contend essentially that the Agreement is a purely national agreement and is therefore exempt from the obligation regarding notification without there being any need to consider the applicability of the conditions prescribed by Article 85 (3).More specifically, IAZ (Case 96/82), Disem-Andries (Case 97/82), Bauknecht (Case 98/82), Artsel (Case 99/82), Zander (Case 100/82), ASOGEM (Case 101/82), van Assche (Case 102/82), Despagne (Case 104/82) and ACEC (Case 105/82) consider that in its Decision the Commission is wrong to treat a strong likelihood of exemption under Article 85 (3) of the Treaty as a condition for exemption from the requirement of notification contained in Article 4 (2) of Regulation No 17. Such an interpretation would seriously undermine legal certainty since it would then be incumbent on the contracting parties themselves to assess whether and, if so, to what extent an agreement is likely to qualify for exemption.The abovementioned applicants add that even on the assumption that the Agreement affects trade between Member States by restricting the right to obtain the labels only to manufacturers and sole importers, it does not follow that it “relates either to imports or exports between Member States” within the meaning of Article 4 (2) of Regulation No 17. In any event, the Decision infringes Article 190 of the Treaty since it does not state in sufficient detail the reasons on which the Commission bases its view that the Agreement relates to imports or exports between Member States.Miele (Case 101/82) is also of the opinion that the meaning of the expression “do not relate either to imports or to exports between Member States” is narrower than that of the expression “affect trade between Member States”. That position was adopted by the Court in its judgment of 18 March 1970 in Case 43/69 Bilger [1970] ECR 127.Miele rejects the Commission's argument to the effect that Article 83 (3) of the Treaty is inapplicable on the ground that the Agreement tends to isolate the Belgian market. That provision, in its view, is applicable in this case on the basis of the following considerations:By establishing an efficient system for checking conformity, the Agreement contributes to improving production and distribution of goods and to promoting economic progress;The conformity checks introduced by the Agreement are beneficial to consumers inasmuch as they enable them to avoid the disadvantages inherent in expensive individual checks and therefore represent a considerable improvement for the contracting undertakings and for consumers;The Agreement does not contain any provision which is not essential to the attainment of the objectives pursued;Competition is not eliminated since conformity checks have only a negligible effect on parallel imports.ANSEAU (Case 108/82) refers to the Court's judgment of 3 February 1976 in Case 63/75 Roubaix-Wattrelos [1976] ECR 111. According to that judgment, agreements which envisage the marketing of goods solely within the territory of the Member State to whose law the undertakings are subject are exempted from the requirement of notification, even if the goods in question have at a former stage been imported from another Member State.ANSEAU adds that the purpose of Article 4 (2) of Regulation No 17 is to provide the undertakings concerned with clear and precise criteria by means of which they may easily ascertain whether or not an agreement must be notified. It follows that the expression “do not relate either to imports or to exports between Member States” must be interpreted as referring to a direct and obvious connection with the imports or exports.(b) The Commission observes in the first place that the Agreement was not exempt from the requirement of notification contained in Article 4 (2) of Regulation No 17 on the grounds that it relates to imports between Member States and that undertakings from different Member States are parties to it.The phrase “do not relate either to imports or to exports between Member States” must be interpreted by reference to the purpose of the abovementioned provision, namely the simplification of administrative formalities in the case of agreements, decisions and concerted practices of a less harmful nature. The Agreement does not satisfy that criterion since its aim is to eliminate parallel imports. It therefore constitutes a serious infringement of Article 85 (1) of the Treaty and cannot be regarded as qualifying for exemption from the prohibition on the basis of Article 85 (3) of the Treaty.Nor does the Agreement satisfy the criterion that all the undertakings which are parties to an agreement must be from one Member State, since one of the parties is BBC Hausgeräte GmbH, a company incorporated under German law. The Commission observes, in that regard, that the concept of legal personality is implicit in the concept of “an undertaking”; if it were otherwise, no undertaking could enter into an agreement. More specifically, under Belgian law a subsidiary without legal personality cannot enter into an agreement without thereby committing the company in its entirety. The applicant's interpretation of the Centrafarm judgment is incorrect since the Court stated quite unequivocally in that judgment that a parent company and a subsidiary are separate undertakings, even if they form an economic unit.As regards the non-application of Article 85 (3) of the Treaty the Commission points out that the conditions for exemption prescribed by that provision have not been satisfied. The Agreement tends to isolate the Belgian market in a manner which is incompatible with the fundamental principles of the common market and it does not therefore contribute to improving the production or distribution of goods or to promoting technical or economic progress. Furthermore, it does not allow consumers a fair share of the resulting benefit but, on the contrary, helps to maintain a situation in which competition is eliminated in respect of a substantial part of the products in question.
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