European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

An exclusivity obligation forces one of the parties, through explicit contractual provisions or by its practical effects, to use only the other party for all, or virtually all, its needs. When concluded between non-competing undertakings, an exclusivity obligation benefits from exemption under the vertical restraints regulation if it meets the conditions . An exclusivity obligation is harmful to c …

Conditions for prohibition

An exclusivity obligation forces one of the parties, through explicit contractual provisions or by its practical effects, to use only the other party for all, or virtually all, its needs. When concluded between non-competing undertakings, an exclusivity obligation benefits from exemption under the vertical restraints regulation if it meets the conditions . An exclusivity obligation is harmful to competition as it supplants the other competitors in favor of one operator  or produces a market-partitioning effect . However, an exclusivity obligation with a positive economic record may also be exempted under the rule of reason  or under Article 101(3), if it meets the requisite conditions. It may produce efficiency gains of a quantitative (reduction of costs), or of a qualitative (increase in the quality of products or services) nature. Any efficiency gains must be passed on to consumers  and restrictions must not be imposed if they are not indispensable . The indispensable character of the exclusivity obligation depends specifically on its duration, which must be in accordance with the economic reasons justifying its existence . Lastly, an exclusivity obligation must not eliminate competition. Its lawfulness depends on the maintaining of a certain level of accessibility to the market, which must remain open in the short term .

Case T-419/03 Altstoff Recycling Austria AG [2011] ECR p. II-975, LawLex201400000041JBJ, holding that service contracts which bind the applicant exclusively to a collection and/or sorting partner operating at a different level of the household packaging disposal chainare subcontracting agreements between non-competing undertakings.

Commission Decision No 78/59/EEC of 2 December 1977, Centraal Bureau voor de Rijwielhandel, LawLex200400002402JBJ: rules of an association of manufacturers, retailers and dealers and repairers which makes membership subject to collective and reciprocal exclusive purchase and sale obligations between authorized members; No 82/371/EEC of 17 December 1981, Navewa-Anseau, LawLex200400002421JBJ: agreement only granting to its signatories - exclusive manufacturers and importers - the benefit of a system of monitoring the conformity of products which is required for their resale; No 92/521/EEC of 27 October 1992, Distribution of package tours during the 1990 World Cup, LawLex200500004814JBJ: agreement between federations of sporting associations and certain travel agencies, reserving to the latter in return for a fee, worldwide exclusivity for the supply of tickets for entry to a sporting event by way of tourist package tours, with a ban on resale of tickets to other agencies; No 92/568/EEC of 25 November 1992, Distribution of railway tickets by travel agents, LawLex200400003674JBJ: approval of travel agencies subject by an association of railway undertakings to the granting of a uniform commission rate and requiring them not to favor, whether by their advertising, by their proposals or by their advice to the public, means of transport competing with the railways; No 93/668/EEC of 24 November 1993, Auditel, LawLex200400002493JBJ, obligation for TV channels, members of a company set up to measure audience ratings, to exclusively use data provided by that company; Case T-401/08 Säveltäjäin Tekijänoikeustoimisto Teosto ry, Judgment of 12 April 2013, LawLex201300000797JBJ: clause giving a single collective management society the exclusive right to grant licenses relative to a given repertoire on a given territory determined, thus creating a monopoly.

Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653, LawLex200400003524JBJ, supply free of charge of freezer cabinets and maintenance thereof by the producer of a very well-known brand of ice-cream with a full range of established products, provided that they are used exclusively for that brand's ice creams.

Commission Decision No 2004/208/EC of 16 October 2003, ARA - ARGEV, ARO, LawLex200500004535JBJ.

Commission Decision No 2004/208/EC of 16 October 2003, ARA - ARGEV, ARO, LawLex200500004535JBJ, an exclusivity clause in contracts to provide collection services for waste household which allow collectors to undertake the long-term planning and organization of their services, allows considerable economies of scale and scope to be achieved and ensures the regular and reliable coverage of needs.

It must be shown that the gains in efficiency would have been smaller without the exclusivity and that there were no less restrictive alternatives available. See Commission Decision No 1999/242/EEC of 3 March 1999, TPS, LawLex200500004734JBJ, indispensable character to the establishment on the market of a Pay TV channel of a clause, which obliges shareholders to offer it priority over its special interest channels and the exclusive right to broadcast general-interest channels for 10 years; No 2004/208/EC of 16 October 2003, ARA - ARGEV, ARO, LawLex200500004535JBJ, indispensable nature of the restriction to ensure the certainty of investments.

Commission Decision No 2001/837/EC of 17 September 2001, Hofmann, LawLex200500004674JBJ.

Commission Decision No 2004/208/EC of 16 October 2003, ARA - ARGEV, ARO, LawLex200500004535JBJ, finding no elimination of competition due to the possibility of a competitive call for tender at the latest on the expiry of a contractual five- year period.

European Competition Law

107. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

107. Conditions for prohibition

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise