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

Article 6 of Regulation No 139/2004 provides that, “A decision declaring a concentration compatible shall be deemed to cover restrictions directly related and necessary to the implementation of the concentration”. The Commission has adopted a notice on ancillary restraints , aimed at allowing undertakings to assess whether their agreements are ancillary. Only restrictions directly related and nece …

Conditions

Article 6 of Regulation No 139/2004 provides that, “A decision declaring a concentration compatible shall be deemed to cover restrictions directly related and necessary to the implementation of the concentration”. The Commission has adopted a notice on ancillary restraints , aimed at allowing undertakings to assess whether their agreements are ancillary. Only restrictions directly related and necessary to the concentration follow the main transaction; others may possibly fall within Articles 101 or 102 TFEU.

To be directly related to the implementation of the concentration, the restriction must be closely linked to the concentration and must be economically related to the main transaction. It must be intended to allow a smooth transition between the former and the new undertaking structure after the concentration . Agreements which ensure the continuity of the business during and following the completion of the concentration are inseparable from the transaction itself . This applies to the commitment made by the vendor not to make any changes in the conduct of its affairs in relation to its usual practices between the conclusion of the agreement and the completion of the sale  or to a clause in a preparatory agreement to the creation of the joint venture pursuant to which the parent companies undertake not to make any unilateral changes in the conduct of business involved in the transaction . More generally, agreements are directly linked to the transaction only where they are finalized or concluded at the time of its submission to the Commission for assessment . This is not the case for restrictions accepted by the vendor for a period prior to the completion of the concentration .

The ancillary restraint must be necessary, i.e. in the absence of that restraint, the transaction could not be implemented or could only be implemented under more uncertain conditions. Necessary restrictions are in principle aimed at protecting the value of the goods transferred  or retained by the seller , or maintaining the supply or outlets , facilitating the transfer of business  or enabling the start up of the new entity . To be necessary, the protection must in principle be to the benefit of the purchaser and not of the vendor .

The restraint, must not exceed what is necessary to implement the concentration in terms of duration and scope of application. Therefore, non-compete commitments characterize ancillary restraints only where they are limited in time , space  and as to their material  and personal  scope. License agreements, which often are part and parcel of the implementation of the concentration, are generally considered to be necessary and proportionate, even if their duration is not limited . By contrast, the Commission is less likely to characterize purchase agreements as ancillary restraints and refuses to review them simultaneously with the concentration. Therefore, mutual purchase and supply commitments that are in excess of what is necessary to the implementation of the concentration are not ancillary restraints  and are subject to the provisions of Article 101 TFEU. Likewise, an exclusive distribution agreement entered into between one of the parents and the joint venture, renewable upon expiration, cannot be considered to be an ancillary restraint where its duration exceeds what is necessary to replace the relation of dependency with one of autonomy .

Commission Notice No 2005/C 56/03 of 5 March 2005 on restrictions directly related and necessary to concentrations.

Commission Notice No 2005/C 56/03 of 5 March 2005, at pt 12 

Commission Decision M.102 of 2 December 1991, TNT/Canada Post, DBP Postdienst, La Poste, PTT Post & Sweden Post, LawLex200400002477JBJ: agreement providing for the joint venture's exclusive access to postal outlets of the parent undertakings for two years in order to facilitate the transfer of the businesses; M.727 of 7 August 1996, BP/Mobil, LawLex200400003133JBJ, relating to a non-compete clause pursuant to which the parent undertakings will not exercise the same business as the joint venture on the geographic market where it is active, and will not sell similar finished products that could be re-imported into that market, for the whole duration of the joint venture.

Commission Decision JV.15 of 30 March 1999, BT/AT&T, LawLex200500004175JBJ, non-compete clause necessary to the establishment of the joint venture on the market; M.1841 of 25 February 2000, Celestica/IBM (EMS), LawLex200400003124JBJ, agreements pursuant to which the purchaser is the vendor's preferred supplier in order to allow the purchaser a minimum economic protection during the start-up period.

Commission Decision M.1226 of 27 July 1998, GEC/GPTH, LawLex200400003138JBJ; M.319 of 30 August 1993, BHF/CCF/Charterhouse, LawLex200400002501JBJ.

For clauses with excessive duration: see, as to the principle, Commission Decision M.2330 of 9 March 2001, Cargill/Banks, LawLex200400002675JBJ. - For applications: see Commission Decision M.197 of 30 April 1992, Solvay-Laporte/Interox, LawLex200500004149JBJ, indefinite duration of a clause; M.308 of 14 December 1993, Kali - Salz/MdK/Treuhand, LawLex200700001998JBJ, a ten-year duration non-competition clause; M.984 of 2 October 1997, Dupont/ICI, LawLex200400002573JBJ, 2-7 year supply clause. For definite-term clauses: duration exceeding three years: Commission Decision M.612 of 27 July 1995, RWE-DEA/Enichem Augusta, LawLex200500004155JBJ, non-compete clause provided for five years; M.861 of 18 December 1996, Textron/Kautex, LawLex200400002565JBJ, non-compete and non-solicitation clauses in favor of the purchaser for a duration of less than five years; M.1042 of 15 January 1998, Eastman Kodak/Sun Chemical, LawLex200400003132JBJ, clause applicable for the whole duration of a joint venture; M.1298 of 23 October 1998, Kodak/Imation, LawLex200400003131JBJ, non-competition clause relating to technologies requiring the implementation of a special know-how and whose life cycle is five to seven years; M.1980 of 1st September 2000, Volvo/Renault VI, LawLex200400003128JBJ, non-compete clause for a five-year term in a sector with a high degree of customer loyalty. Duration less than three years: Commission Decision M.2077 of 1st September 2000, Clayton Dubilier & Rice/Italtel, LawLex200400003125JBJ, a three-year non-compete clause is ancillary if it is aimed at protecting the buyer's interests where the purchased undertaking has only a limited number of patents and a substantial part of the value of the purchased businesses is comprised of know-how and goodwill; M.2227 of 20 March 2001, Goldman Sachs/Messer Griesheim, LawLex200400003142JBJ, for a three-year non-compete clause. Duration less than two years: Commission Decision M.884 of 14 February 1997, KNP BT/Bunzl/Wilhelm Seiler, LawLex200400002567JBJ, a non-competition clause imposed on the vendor of goodwill is ancillary if it is of less than two years' duration.

Commission Decision M.727 of 7 August 1996, BP/Mobil, LawLex200400003133JBJ, the non-compete clause pursuant to which the parent undertakings will not exercise the same business as the joint venture on the geographical market where it is active is ancillary; M.1482 of 12 April 1999, Kingfisher/Grosslabor, LawLex200500005290JBJ: the geographic scope of a non-competition clause must be limited to the market where the vendor had established the products and services concerned before the concentration.

Commission Decision M.1979 of 4 August 2000, CDC/Banco Urquijo/JV, LawLex200400003145JBJ: Only a non-compete clause whose scope is limited to the products and services in which the vendor is active before the transaction may be regarded as an ancillary restraint.

Commission Decision M.1226 of 27 July 1998, GEC/GPTH, LawLex200400003138JBJ.

Commission Decision M.197 of 30 April 1992, Solvay-Laporte/Interox, LawLex200500004149JBJ: in the context of a division, a clause pursuant to which one of the parent companies agrees, on an indefinite basis, not to disclose to third parties or to use information it has on the business being acquired by the other parent may be considered as an ancillary restraint; M.984 of 2 October 1997, Dupont/ICI, LawLex200400002573JBJ: a perpetual, non-exclusive license granted to the vendor by the purchaser and relating to technologies not included in those involved by the concentration cannot be characterized as ancillary restriction to the concentration.

Commission Decision M.984 of 2 October 1997, Dupont/ICI, LawLex200400002573JBJ: a clause obliging the purchaser to continue a supply agreement entered into between the seller's subsidiary, responsible for the purchased business, and another of its subsidiaries, for a duration of two to seven years, is not an ancillary restriction covered by the compatibility decision; M.1057 of 19 December 1997, Terra/ICI, LawLex200400003130JBJ.

Commission Decision M.1042 of 15 January 1998, Eastman Kodak/Sun Chemical, LawLex200400003132JBJ.

Commission Decision M.1057 of 19 December 1997, Terra/ICI, LawLex200400003130JBJ: The vendor's undertaking not to make any material changes to its operation conditions before the end of the transaction is an ancillary restraint covered by the decision of compatibility.

Commission Decision M.601 of 30 June 1995, Employers Reinsurance Corporation/Aachener Rückversicherungs Gesellschaft AG, LawLex200400002524JBJ; M.861 of 18 December 1996, Textron/Kautex, LawLex200400002565JBJ.

Commission Decision M.253 of 17 August 1992, BTR/Pirelli, LawLex200500004150JBJ; M.727 of 7 August 1996, BP/Mobil, LawLex200400003133JBJ; M.984 of 2 October 1997, Dupont/ICI, LawLex200400002573JBJ.

Commission Decision M.540 of 2 February 1995, Cegelec/AEG, LawLex200400002515JBJ: restrictions of competition provided for in an agreement which is not finalized and not submitted to the Commission's assessment cannot be considered as ancillary and are not covered by the compatibility decision; M.1075 of 20 January 1998, Nordic Capital/Mölnlycke Clinical/Kolmi, LawLex200500004163JBJ: a distribution agreement envisaged by the parties but not yet concluded cannot be considered as an ancillary restraint to the concentration.

Commission Decision M.197 of 30 April 1992, Solvay-Laporte/Interox, LawLex200500004149JBJ.

Commission Decision M.612 of 27 May 1995, RWE-DEA/Enichem Augusta, LawLex200500004155JBJ; M.2227 of 20 March 2001, Goldman Sachs/Messer Griesheim, LawLex200400003142JBJ: Non-compete clause intended to guarantee to the buyer the continuity of the value of the assets transferred to it by preventing the seller from continuing the purchased business; M.861 of 18 December 1996, Textron/Kautex, LawLex200400002565JBJ, Commitment by the vendor not to change its line of conduct before the end of the transaction to guarantee the transfer to the purchaser of the full value of the assets; M.1442 of 3 March 1999, MMP /AFP Corrugated, LawLex200400003140JBJ, for agreements which provide for the purchaser's access to records relating to the sold undertaking's financial statements, which give the vendor a right of representation at the board in order to ensure the proper conduct of business and which provide for a non-compete and non-solicitation obligation and the granting of royalty-free know-how licenses to the purchaser.

Commission Decision M.319 of 30 August 1993, BHF/CCF/Charterhouse, LawLex200400002501JBJ, for a mutual clause not to solicit employees between the purchasers and the vendor, which protects the value of the assets retained by the vendor; M.554 of 13 March 1995, Dalgety PLC/The Quaker Oats Company, LawLex200400002519JBJ, relating to a mutual license agreement entered into between the seller and the purchaser, regarding both the acquired business and the business retained by the seller; M.1167 of 29 April 1998, ICI/Williams, LawLex200400003143JBJ, know-how or trademark licenses are necessary to ensure for the vendor the full value of the business which it retains while allowing the transfer of the full value of the acquired business to the purchaser.

Commission Decision M.113 of 19 December 1991, Courtaulds/Snia, LawLex200400002479JBJ, for a non-exclusive supply agreement by one of the parents of the joint venture which is aimed at ensuring the continuity of the supply to the joint venture; M.1841 of 25 February 2000, Celestica/IBM (EMS), LawLex200400003124JBJ, for agreements in which the purchaser is the preferred supplier of the vendor and which are aimed at ensuring continuity of the vendor's supply.

European Competition Law

309. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

309. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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