BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
Flogas Irl Ltd authorised Licence dealer agreement Calor Teoranta authorised dealer agreement & Blugas Ltd [1994] IECA 364 (28th October, 1994)
COMPETITION
AUTHORITY
Cylinder
LPG Category Licence
Price
£2.20
£2.90 incl. postage
Cylinder
LPG Category Licence
Competition
Authority Decision of 28 October 1994 granting a licence under Section 4(2) of
the Competition Act, 1991, to a category of exclusive purchasing agreements in
respect of cylinder liquified petroleum gas.
Decision
No.364
Introduction
1. ´which
in the opinion of the Authority, having regard to all relevant market
conditions, contributes to improving the production or distribution of goods or
provision of services or to promoting technical or economic progress, while
allowing consumers a fair share of the resulting benefit and which does not -
(i)
impose on the undertakings concerned terms which are not indispensable to
the attainment of those objectives;
(ii)
afford undertakings the possibility of eliminating competition in respect of a
substantial part of the products or services in question.'
2. Several
agreements have been notified to the Authority concerning exclusive purchasing
arrangements for the resale of cylinder liquified petroleum gas (LPG) by
dealers. The Authority issued Statements of Objections to two suppliers in
respect of their notified agreements. Having considered certain notified
agreements at length and the relevant market, the Authority has decided to
grant a category licence under
Section 4(2) of
the Act. The Authority published
a draft of the category licence on 24 June 1994, and several submissions were
received.
The
Subject of the Decision
3. This
decision concerns the supply and exclusive purchasing agreements between
suppliers of cylinder LPG and resellers at the retail level, subsequently
referred to as dealers. It does not cover agreements for the exclusive
distribution of cylinder LPG to dealers, nor to agreements for the purchase of
bulk LPG by end-users.
The
Product Concerned
4. LPG
is the term commonly used to describe butane or propane gases or a mixture of
both. These gases can be readily liquified by applying moderate pressure.
This gives LPG its unique advantage - it has the clean-burning characteristics
of a gaseous fuel while at the same time it can be transported and stored as a
concentrated liquid with a high energy content. LPG has a very broad range of
applications including domestic and commercial cooking, heating and
water-heating; process heating, space and water-heating in industry; the
rearing of poultry and farm animals; atmospheric growth enrichment of plants;
vehicle propulsion, power generation and finally as a chemical feedstock. LPG
is supplied in cylinder or bulk form, cylinder LPG being mainly used for
domestic cooking and heating. It is a volatile fuel, and is subject to
stringent safety Regulations in storage, handling and use.
The
Market
5. LPG
forms part of the overall market for energy in Ireland. There are a wide
variety of energy products including LPG, oil, coal, turf, electricity and
natural gas. The consumption of the different fuels in recent years is shown
in Table 1.
Table
1
Final
Energy Consumption in Ireland
Fuel
Tons
of Oil
Percent
of Total
Equivalent
(000's)
1988
1991
1988
1991
Coal
976
845
14.9
11.5
Peat
679
659
10.3
9.0
Oil
3,343 3,966
50.9
54.0
LPG
146
153
2.2 2.1
Gas
485
644
7.4
8.8
Electricity
934
1,084
14.2 14.7
Town
Gas
1
-
*
-
TOTAL
6,564 7,351 100.0 100.0
2. Source:
Department of Energy
*Negligible
3. Oil
accounts for well over 50% of final energy consumption in Ireland, and
electricity for over 14%, while the share of LPG in the total is only around
2%. While total energy consumption has increased between 1988 and 1991, this
is largely due to an increase in oil consumption. Consumption of LPG was
slightly higher in 1991 compared to 1988.
6. The
Authority agrees with the often stated view of the EC Commission that "A
relevant product market comprises in particular all those products which are
regarded as interchangeable or substitutable by the consumer, by reason of the
products' characteristics, their prices and their intended use", in situations
ranging from application of the merger control Regulation to the Notice on
agreements of minor importance. (1) The substitutes for LPG depend to some
extent upon the usage to which the energy is put. For domestic cooking,
electric cookers and, where the product is available, natural gas cookers are
alternatives to LPG, as are oil-fired and solid fuel cookers. For domestic
heating, the alternative fuels are also electricity, natural gas, oil and solid
fuel, by means of central heating installations or single appliances or
fireplaces. Two or more fuels may be used in a single household. While most
fuels are substitutes in the medium to long run, there appears to be a much
lesser degree of interchangeability in the short term. Once a particular
appliance or system has been purchased, only one form of fuel can normally be
used. Thus, for example, only LPG can be used in an LPG cooker or heater. In
many households, cylinder LPG is used as a supplementary heating fuel. Some
households have more than one appliance or system, each using a different fuel,
though this can be costly. Over time, any appliance or system can be replaced
by one using a different fuel. If a person wishes to use a cylinder LPG
appliance, there is no substitute for a cylinder of LPG. In addition, safety
obligations and a cylinder distribution system impose significant extra costs
on LPG suppliers compared to other fuels, putting LPG at a relative price
disadvantage compared to these fuels. Over the past 12 years, the price of
other energy sources, according to Calor, has fallen in relation to LPG.
Nevertheless, while mindful of the fact that LPG forms part of the total energy
market, the Authority considers that cylinder LPG constitutes a distinct
product market on its own.
7. The
total consumption of LPG in Ireland since 1975 is shown in Table 2.
Table
2
LPG
Consumption in Ireland (´000 tonnes)
Year
Consumption
Year
Consumption
1975
148
1983
170
1976
148
1984
145
1977
168
1985
147
1978
149
1986
146
1979
166
1987
136
1980
169
1988
130
1981
163
1989
130
1982
176
1990
133
4. Source:
Flogas, Davy Stockbrokers, November 1991.
5. Note
: The above figures relate to tonnes of LPG, as compared to tonnes of oil
equivalent in Table 1.
6. While
changes in consumption of LPG as a whole have been marked in some years
compared with the previous year, over the period there appears to have been an
upward trend in consumption from 1975 to a peak in 1982, with a decline
thereafter, so that 1990 consumption was more than 10% below that in 1975 and
around 25% lower than the peak level in 1982. A number of reasons was advanced
for the fall in LPG consumption over the last ten years, the demand for
cylinder LPG for domestic purposes, in particular, having suffered a
substantial decrease.
8. The
structure of the LPG market has changed over the years. The first supplier was
Calor, which entered the Irish market in 1936. Kosangas entered in 1951, and
Calor took over Kosangas in 1971. That year also, Ergas (later associated with
Shell) commenced operations, followed by Flogas in 1978 and Tervas in 1987.
Flogas acquired Ergas in 1989, and in 1990 Blugas entered the market, Blugas
being formed by three distributors of Esso products.
9. The
main suppliers in the market at present are Calor Teoranta, Flogas Ireland Ltd
and Blugas Ltd. Calor, which also owns Kosangas, has four import terminals -
at Dublin, Cork, Whitegate and New Ross - and distribution terminals at
Claremorris and Sligo, and its LPG cylinders are filled at Dublin and Cork.
Flogas, which also owns Ergas, has three terminals in the State - at Drogheda,
Cork and Ballyhaunis. From these, Flogas supplies a network of distributors,
mainly by road tanker, and the distributors ´bottle' the gas in cylinders.
Blugas was founded by three firms which were all involved in the oil
distribution business. Its LPG is mainly supplied by Esso, and is stored at a
terminal in Dublin, where it is bottled. Distribution was initially done by
the three founder members, but Blugas itself has now replaced one of these.
These three suppliers operate nationwide. Tervas operates mainly in the Cork
area, with a small market share. Another firm, Trugas, was reportedly
operating in the Drogheda area. Most LPG is imported, with some supplies being
obtained from the INPC refinery at Whitegate.
10. The
main suppliers have invested heavily in storage and filling equipment at
depots, in road tankers and other delivery vehicles, and in small and
medium-sized cylinders and bulk storage tanks. Part of the reason for this is
that LPG is highly flammable, and has been designated a dangerous substance and
is subject to extensive regulation and supervision. LPG is bottled centrally
or locally, and is distributed by the supplier or by exclusive distributors to
a large number and variety of retail outlets for resale to final consumers.
Retail outlets include hardware, grocery, fruit and vegetable shops, builders'
providers, newsagents, domestic appliance sales centres, garage forecourts,
fuel depots and roundsmen of various sorts, e.g. milk, coal, etc.
11. It
is understood that Calor sells through some 3,000 dealers, Flogas through some
3,400, and Blugas through over 1,000, although there was some dispute over
these figures. A sizeable number of dealers sell small quantities of LPG, on
average less than 10 cylinders a week. Generally each dealer has an exclusive
purchase agreement with the supplier, even if supplies are obtained from
distributors. Dealers are usually tied to a brand for five years, and are
subject to certain safety standards. Suppliers have invested in dealer outlets
in the form of hardware, such as cylinders, signs and storage cages, and they
provide marketing, technical advice and safety support systems.
12. It
is generally accepted that Calor is the market leader, with a share of the
total market for LPG in excess of 60%, followed by Flogas with over 30% of the
market. Blugas is considered to have a market share of more than 5%, with
Tervas having under 1%.
13. LPG
can only be used in specific appliances, and suppliers usually insist on
approving these. Appliances can use any brand of LPG, although a special
adaptor is needed in the case of Ergas.
14. Up
to January 1986 the retail price of cylinder LPG was subject to strict price
control by way of a Maximum Prices Order. Since then, there has been no
statutory control of retail prices for LPG.
The
Dealer Agreements
15. According
to the notifications received, each dealer in cylinder LPG has an exclusive
purchase agreement with its supplier. The dealer is required to purchase
cylinder LPG exclusively from the supplier, or from a distributor appointed by
the supplier, and is required not to engage, directly or indirectly, in the
sale, distribution or advertising of any other brand or brands of LPG. The
dealer is also obliged not to sell the product from any premises other than the
premises specified in the agreement. In the case of the Calor (and Kosangas)
and Blugas agreements, the agreement remains in force for a period of five
years, with no period specified for notice of termination. The Calor
agreement, where it has expired, has been replaced by an agreement which
provides for such alternative period of exclusive purchase as may be licensed
or certified under the
Competition Act. (Previous versions of the Calor
agreement provided that the agreement would remain in force indefinitely until
terminated by either party giving 12 months' notice). The Flogas (and Ergas)
agreement provides that the agreement remains in force for two years, and from
year to year thereafter, subject to the right of either party to terminate the
agreement on giving 12 months' notice, provided that the agreement terminates
after five years. All agreements may be renewed after they have been
terminated. The agreements do not confer any exclusive territorial rights on
the dealer. None of the agreements contain a post-termination non-compete
clause, though previous versions of the Calor agreement prohibited the dealer,
for 3 months after termination of the agreement, from selling other brands of
LPG within a one mile radius of the premises.
16. While
not explicitly stated in the agreements, dealers are only appointed by the
three main suppliers if they meet certain safety standards, as provided in
Irish safety standards, I.S. 3213 of 1987, concerning the storage of LPG
cylinders and cartridges.
17. Under
the terms of the notified agreements, dealers are required not to engage in any
activity which might prejudice the promotion and sale of the supplier's brand.
They are also required to promote sales and to obtain new customers. Dealers
are required to display approved signs, both outside and inside the premises,
identifying the dealer as an approved dealer of the supplier. Dealers may be
required to display advertising and publicity material, and only to advertise
and publicise the product in a form approved by the supplier. They may be
required to provide window space to display approved appliances. Dealers are
required to sell cylinders under the supplier's trademark.
18. Dealers
agree to keep stocks of cylinders and regulators, and in some cases, recognised
appliances. They are required to provide suitable storage facilities and to
allow access to the premises by the supplier. They may be required not to
supply any customer unless that customer has signed an agreement with the
supplier. Dealers are required to maintain an up-to-date list of the names and
addresses of all customers, which may be inspected by the supplier at any time
on request, although this requirement largely does not operate in practice.
19. Dealers
may be required not to permit any other person, who is not authorised, to
engage in the sale, delivery or service of the product. They may be required
to ensure that cylinders are not filled by unauthorised persons. Dealers are
required to comply with statutory safety provisions, and with specified
standards, and with regulations established by the supplier. Dealers accept
that the cylinders and regulators remain the property of the supplier at all
times, and that they may not sell or transfer the cylinders other than in
accordance with the agreement. Dealers agree that they are not constituted
agents or servants of the supplier, though they may describe themselves as
authorised dealers. They are required to maintain insurance, including public
liability insurance.
20. All
the notified agreements provided that the supplier would furnish the dealer
with a notification showing the current retail price of the product, and that
the dealer was obliged to display this notice in a prominent place on the
dealer's premises. The Calor/Kosangas agreements provided that the dealer was
required not to exceed the official retail prices in effect at the time of the
delivery. (A similar provision was included in the previous Flogas/Ergas
agreements).
21. The
Calor and Flogas agreements provided that the dealer was not to permit their
cylinders to be used other than in recognised appliances. The Calor agreement
required the dealer not to sell or advertise appliances other than those
recognised by Calor, and not to purchase appliances other than from Calor. The
Flogas agreement required the dealer not to sell or advertise appliances which
Flogas had notified were unsuitable for use with Flogas or for use in
association with or close to Flogas.
EEC
Regulation 1984/83
22. EEC
Regulation No. 1984/83, of 22 June 1983, is a block exemption regulation which
applies Article 85(3) of the Treaty of Rome to categories of exclusive
purchasing agreements. The regulation entered into force on 1 July 1983 and it
expires on 31 December 1997.(2)
23. Exemption
is granted to agreements involving only two parties whereby the reseller agrees
to purchase specified goods only from the supplier, or from a connected
undertaking or one entrusted by the supplier with the sale of his goods. No
exclusive territory is allotted to the reseller, but the supplier may be
obliged not to distribute the contract goods or competing goods in the
reseller's principal sales area and at the reseller's level of distribution.
There are general provisions regarding what is and is not permissible. The
exclusive purchasing agreement must have a definite duration which may not
exceed five years, although it may be renewed, and it must not cover more than
one type of goods which are not connected to each other either by their nature
or by commercial usage. The reseller must be allowed freedom to determine his
resale prices. The benefit of exemption may be withdrawn by the Commission
from an individual agreement, if the conditions of Article 85(3) are not
satisfied.
24. In
this latter connection, the decision in 1992 of the EU Commission in the
Scholler and Langnese-Iglo cases is of considerable relevance.(3) These German
ice-cream manufacturers had exclusive purchasing agreements with a large number
of retail outlets. Each had a leading position and a substantial share of the
market. The Commission found,
inter
alia
,
that the agreements restricted inter-brand competition and restricted the
choice available to consumers. There were barriers to entry, and there was not
effective competition on the relevant market. The Commission accordingly
refused to exempt the Scholler agreements under Article 85(3) of the Rome
Treaty, and withdrew the benefit of the block exemption in Regulation 1984/83
from the Langnese agreements.
Subsequent
developments.
25. Following
publication of the draft category licence, a number of submissions was made to
the Authority. Calor and Flogas maintained that a licence should be granted
for five-year exclusive purchasing agreements. Blugas and Tervas, however,
argued that there should not be any exclusive purchasing agreements with LPG
dealers. The conflicting arguments are dealt with in the assessment below, and
account has been taken of other points made in the submissions.
Assessment
Applicability
of Section 4(1)
26.
Section
4(1) of the
Competition Act, 1991 prohibits and renders void all agreements
between undertakings which have as their object or effect the prevention,
restriction or distortion of competition in trade in any goods or services in
the State or in any part of the State.
(i)
Agreements between undertakings
27. According
to
Section 3(1) of
the Act, ´undertaking means a person being a body
corporate or an unincorporated body of persons engaged for gain in the
production, supply or distribution of goods or the provision of a service.'
The suppliers are corporate bodies engaged for gain in the supply and
distribution of LPG, both to resellers and to final consumers. Accordingly,
the suppliers are undertakings within the meaning of
the Act. The dealers may
be either bodies corporate, unincorporated bodies of persons or sole traders,
all of whom purchase LPG for resale to consumers, and they are thus engaged in
the supply and distribution of LPG for gain. They also are undertakings within
the meaning of
the Act. The dealer agreements are agreements between
undertakings. The relevant product market is that for cylinder LPG. Since the
product is distributed, and the dealers are located, throughout the State, the
relevant geographical market is the State.
(ii)
The exclusive purchasing requirement
28. The
essential feature of the notified agreements is that the dealer must purchase
LPG exclusively from the supplier for a specified period, generally for five
years, although, in the case of Flogas, the agreement may be terminated after
two years, provided that 12 months' notice of termination is given. This
exclusive purchasing requirement is accompanied by an obligation not to deal in
LPG supplied by another supplier. The exclusive purchasing requirement limits
the freedom of the dealer to obtain supplies of LPG from other suppliers, and
of other suppliers to supply him, and denies him supplies unless he accepts the
exclusive purchase requirement. The arrangements restrict competition in a
number of ways. Given the bulky nature of the product, the market is
essentially a localised one. This is in contrast to the view taken by the
Authority in the case of shopping centres. Consequently, the requirement that
the retailer purchase LPG from only one supplier limits competition,
particularly in rural and certain suburban areas where there are relatively few
other outlets. The Authority accepts that in many instances other brands of
LPG may be available from other retail outlets nearby. In many instances,
however, this will not be true and the restriction means that the consumer's
choice as to which brand of LPG to buy will be greatly limited.
29. While
each individual agreement might generally have relatively little effect upon
competition, all the agreements together form a network of restrictive
agreements for the distribution of each brand of LPG at the dealer level. A
significant proportion of all retail outlets in the State is obliged to
purchase LPG only from a particular supplier by virtue of these agreements
thereby restricting competition throughout the State. In addition, the large
number of retailers tied to a specific brand means that in some instances
competing retail outlets may be tied to the same brand, effectively reinforcing
the restriction on competition in the particular area of the individual
agreements. Finally, each supplier's agreements are themselves part of a wider
restrictive system for distribution in the cylinder LPG market as a whole. No
dealer can purchase LPG from anyone other than the exclusive supplier for a
relatively long period of time. This tends to introduce a considerable degree
of rigidity into the market, and it makes it difficult for a new entrant to
enter the market quickly on any significant scale since a large number of
retail outlets for LPG, including most if not all of the best outlets, are not
available, at least until their exclusive agreements have expired. The fact
that retailers are tied to a particular supplier for up to five years may also
prevent other suppliers gaining access to retail outlets in particular local
markets. The Authority considers, therefore, that the standard LPG dealer
agreements have the object and the effect of preventing, restricting or
distorting competition in goods in the State, and thus they offend against
Section 4(1). This view of the Authority applies whether the exclusive
purchasing requirement applies for a fixed number of years only, or whether it
applies for a fixed or indefinite number of years subject to a lengthy period
of notice to terminate the agreement.
30. This
view about exclusive purchasing agreements is consistent with that taken by the
Authority in the Esso decision (4), and also with that in US and EU cases. In
the US, for example, the Supreme Court ruled in Standard Fashion v.
Magrane-Houston (5) that an exclusive purchasing agreement was illegal under
Section 3 of the Clayton Act which prohibits such arrangements if their effect
is to ´substantially lessen competition or tend to create a monopoly'. In
that case, 40% of retailers of the products in question were covered by such
agreements. Scherer and Ross report that subsequent court decisions found
exclusive purchase agreements involving lower market shares to be illegal (6).
In addition, the Authority agrees with the judgment of the EU Court of Justice
in the case of Delimitis v Henniger Brau (7). The Court stated that an
exclusive purchasing agreement must be considered in its economic and legal
context, and as part of a network of such agreements by one supplier, and as
part of a series of networks of several suppliers, as part of its overall
assessment. The Court decided that access to the market or increasing market
share by competitors must be made difficult, because of the cumulative nature
of such agreements, and that the agreement in question must make a significant
contribution to the sealing-off effect produced by the totality of these
agreements in order for Article 85(1) to be applicable. The Authority believes
that such considerations apply in this instance and consequently, in its view,
exclusive purchase agreements for cylinder LPG have the effect of restricting
competition within the State. In addition, the Authority believes that the
object of the agreements is to restrict competition within the State by
restricting dealers to selling only one brand of LPG and preventing other
suppliers from gaining access to retail outlets. The Authority also considers
that any period of notice to terminate an agreement which lasts for a fixed
period of time, and which must terminate at the end of that period, inhibits
the freedom of the dealer in deciding whether or not to renew the agreement.
For these reasons the exclusive purchase agreements notified by Calor, Flogas
and Blugas and any other exclusive purchase agreements for cylinder LPG offend
against
section 4(1).
(iii) Selection
of dealers
31. While
the criteria for the selection of dealers were not included in the notified
agreements, they do form an integral part of the arrangements for the
distribution system of LPG. As in the Esso and other Authority decisions, and
in line with the views of the EU Commission and the Court of Justice, the
Authority considers that related arrangements should be considered together as
one.
32. It
appears that not every dealer who wishes to sell a particular brand of LPG will
be appointed, and that the arrangements have some of the features of a
selective distribution system. In the Metro (No. 1) case, the EU Court of
Justice upheld the view of the EU Commission that selective distribution
systems based on objective qualitative criteria were not contrary to Article
85(1). The Court said: "selective distribution systems [constitute], together
with others, an aspect of competition which accords with Article 85(1),
provided that resellers are chosen on the basis of objective criteria of a
qualitative nature relating to the technical qualifications of the reseller and
his staff and the suitability of his premises and that such conditions are laid
down uniformly for all potential resellers and are not applied in a
discriminatory fashion."(8) The Authority considers that a selective
distribution system which is based on objective qualitative criteria does not
offend against
Section 4(1), provided these criteria are not applied in a
discriminatory fashion.
33. The
Authority considers that refusal to appoint a dealer unless the dealer's
premises comply with the Irish safety standards for the storage of LPG is an
objective qualitative criterion. A requirement for the dealer to have a
reasonable commercial presence in the locality and to have minimum financial
capabilities, provided these criteria are not applied discriminatorily, are
also accepted as objective qualitative criteria. Given the bulky nature of the
product, a requirement that dealers in areas where delivery is necessary should
have the ability to deliver LPG cylinders is also considered to be an objective
criterion. It is relevant that, despite an element of selection of dealers
being present, a large number of dealers in LPG has been appointed. None of
these requirements is considered to offend against
Section 4(1).
34. Requirements
that the dealer has the ability to generate a minimum turnover and that
appointments be commercially viable for the dealer do, however, represent
quantitative criteria which, by excluding some potential dealers from obtaining
supplies of LPG, restrict them in exercising complete freedom to operate their
business. Where such restrictions are imposed as part of an agreement or
concerted practice between a supplier and other dealers, they represent
restrictions on competition which offend against
Section 4(1). This accords
with the judgment of the Court of Justice in the Binon case where it held that
´a selective distribution system.....is prohibited by Article 85(1) of the
Treaty if resellers are chosen on the basis of quantitative criteria.'(9)
(iv)
Price Maintenance
35. The
notified agreements contained a clause requiring the dealer not to exceed the
supplier's official retail prices, and to display prominently a notice showing
the current retail prices. These notices did not indicate that the prices were
recommended, or that they were not binding on the dealer, or that the dealer
was free to set resale prices. The specification of a fixed or a maximum price
limits the freedom of the dealer to set prices in accordance with his own
judgment. It is not for suppliers to take it upon themselves the role of
setting fixed or maximum resale prices for their product. Setting a maximum
price on its own can lead to the situation where this becomes the minimum price
also, and thus to the only price being charged. Thus the requirement not to
exceed the official retail price offends against
section 4(1) in the
Authority's opinion. The requirement to display prominently the supplier's
notice showing the current retail price represents a further restriction of
competition. In the Authority's opinion the object of this requirement is to
try to ensure that this is the price charged by dealers thereby leading to
uniform retail prices for cylinder LPG. These views are supported by
considerable evidence that most dealers charge the price on the supplier's
display notice most of the time. This price appears, frequently at least, to
have been the same for all LPG suppliers in the market. The requirement to
display this price virtually ensures that it is the price which will be
charged. The Authority regards anything which constitutes, or which enforces
or is conducive to, resale price maintenance as a serious restriction upon
competition, indeed as the elimination of price competition, and therefore as a
serious infringement of the prohibition in
Section 4(1) of
the Act. It tends
to ossification of the price structure, and hence to higher prices. This is in
line with the general attitude of the EC to resale price maintenance. In the
GERO-Fabriek case, for example, the Commission stated that:
7. ´Likewise,
the system of imposed retail prices makes it impossible for dealers to fix
their own retail prices by reference to their own costs and commercial policy.
The free formation of prices and the ability to pass on to purchasers any
possible resulting benefits are hindered or at least substantially reduced.
The system is thus clearly contrary to the prohibition in Article 85(1)'.(10)
8. Thus,
requirements to display a notice containing the supplier's current retail
prices, and requirements not to exceed the supplier's recommended prices,
offend against Section 4(1).
36. As
it stated in the Esso decision (11), the Authority does not regard the
recommending of resale prices by the supplier as amounting to resale price
maintenance, provided that there is no agreement or concerted practice that the
dealer observe these prices, and provided that the dealer is informed that he
is free to set his own prices, and it considers that this does not offend
against
Section 4(1). Unless these conditions are satisfied, the
recommendation of prices by a supplier would offend against
Section 4(1).
(v)
Post-termination clauses
37. Some
older agreements imposed an obligation on the dealer not to compete with the
supplier by selling another brand of LPG for a stated period after termination
of the agreement. Such a non-compete clause offends against
Section 4(1).
(vi)
Sale of appliances
38. While
dealers may be required to purchase LPG exclusively from one supplier, and may
be required to sell only approved appliances, they must be free to purchase
appliances from any source. Any obligation on dealers to purchase appliances
only from the LPG supplier, or from a source specified by the LPG supplier,
limits the freedom of the dealer to purchase appliances, and limits the ability
of appliance suppliers to supply dealers, and interferes with competition.
Such a requirement offends against
Section 4(1).
(vi)
Other clauses
39. The
Authority considers that none of the other clauses in the notified agreements
come within the scope of the prohibition in
Section 4(1) of
the Act, and in
particular:
(a)
an obligation on the dealer to operate from specified premises in an area
which may be designated by the supplier, since the premises must be approved by
the supplier on safety grounds, and since the dealer is not given exclusive
rights in any area;
(b)
obligations on the dealer to promote sales of the product, to seek new
customers and not to prejudice the promotion of the brand, and to keep adequate
stocks of LPG cylinders (and appliances where applicable), and to sell under
trademarks, do not restrict competition, but rather encourage it;
(c)
obligations on the dealer to display signs and to provide
display
space for appliances, and to secure the supplier's approval for advertising
material, do not restrict the dealer's ability to advertise and compete;
(d)
obligations on the dealer to ensure that no cylinder will be refilled other
than by the supplier or distributor, and to ensure that cylinders are only
issued on a service basis, or for the purposes of the agreement, and that the
dealer will not dispose of or decant any cylinders, reflect the fact that the
supplier is entitled to ensure that its product is used exclusively in its
equipment. They also ensure that its property rights are not infringed, that
competing products do not get a ´free ride' in equipment for which other
suppliers have not had to pay, thus giving them a competitive advantage, and
that there is adherence to safety factors. These do not restrict competition
within the meaning of
Section 4(1);
(e)
the acceptance that the dealer is not a servant or agent of the supplier, and
that appliance customers are customers of the supplier not of the dealer, are
designed to limit the liability of the supplier, on safety grounds;
(f)
an obligation on the dealer to ensure that each new customer signs a cylinder
service agreement reflects the relationship between the supplier and the
customer, and does not restrict competition;
(g)
an obligation on the dealer to keep a list of names and addresses of customers
for inspection by the supplier could be used for anti-competitive purposes, for
example to ensure the integrity of a distribution system which offended against
Section 4(1). The Authority considers that this is not the object or effect of
the requirement in the LPG agreements, but rather for reasons of ensuring
safety. In case of a complaint or an accident, it is necessary for the
supplier to be able to ascertain the source from which the customer obtained
the cylinder in question. In addition, the obligation appears rarely to have
been enforced, and is virtually redundant, and it does not affect competition;
(h)
an obligation on the dealer not to permit others to deal in the product is
imposed for reasons of safety, and does not affect competition;
(i)
obligations to provide suitable storage facilities and to allow access to
these by the supplier, to comply with statutory safety provisions, standards
and regulations of the supplier, and to maintain insurance, including public
liability insurance, do not affect competition; and
(j)
obligations on the dealer to sell only approved appliances or not to sell
unsuitable appliances, and to ensure that cylinders are used only in recognised
appliances, are for reasons of safety, and do not interfere with competition.
Applicability
of Section 4(2)
40. Under
Section 4(2), the Competition Authority may grant a licence in the case of any
agreement or category of agreements which satisfies all the requirements of the
Section, as quoted in para 1 above.
41. In
the Authority's opinion, exclusive purchasing agreements by dealers for
cylinder LPG for a lengthy period of time do not fulfil the conditions set out
in
Section 4(2) and cannot therefore qualify for a licence. Any benefits and
efficiencies produced by such arrangements are, in the Authority's view, quite
limited in this instance, and a lengthy period of exclusivity is not essential
for their attainment. The Authority believes that exclusive purchase
agreements for a limited period of time, i.e. no more than two years, may
satisfy the requirements for a licence, although it considers that, given the
nature of the trade, the operation of such more limited restrictions would need
to be closely monitored to ensure that the requirements of
Section 4(2) are in
fact met.
(i)
The exclusive purchasing and related requirements
(a) Improvements in distribution and benefits to consumers
42. There
are a large number of LPG dealers in the State, most of whom sell only a fairly
small number of cylinders. Very many dealers sell, on average, less than ten
cylinders a week. There would thus not appear to be any economic or efficiency
gains as a result of the exclusive purchasing arrangements. The Authority
accepts that there may be some limited improvements in the distribution system
arising from the agreements to the extent that they facilitate forward planning
by the suppliers. It also recognises that the agreements may contribute to
technical progress by virtue of adherence to safety standards. It accepts that
LPG is distributed throughout the country, although it believes it would
continue to be distributed throughout the State in the absence of any exclusive
purchase agreements. The Authority believes that there is some benefit from
the agreements in which consumers can share, although these would seem to be
rather limited.
(b) Indispensability of the arrangements
43. The
Authority does not consider, however, that five year exclusive distribution
agreements are indispensable to achieve the limited benefits described above.
The Authority accepts that the suppliers have made a substantial investment in
terminals, equipment, transport, cylinders and storage tanks. It does not
consider that this investment can only be viable if the distribution system for
cylinder LPG relies upon exclusive purchase by dealers of the product of one
supplier for a five-year period, especially for well-established firms. In the
case of many other products, suppliers undertake substantial investments
without imposing such exclusive requirements on their customers. It is
relevant also that cylinder LPG represents only about 40% of total LPG sales.
While exclusive purchasing agreements for a long period might be helpful for a
new entrant, as stated in Regulation 1984/83, this does not apply to firms
which have become established in the market. It would be more advantageous for
consumers, and for the suppliers themselves, if suppliers attempted to justify
their investment by competing for customers rather than by tying dealers for
lengthy periods.
44. The
Authority does not believe that regular, stable and convenient supplies of LPG
would not be made available to consumers on a widespread basis were exclusive
purchasing agreements to be limited to a two-year period. Indeed, competition
for market share by suppliers, and attempts to sell to dealers who had formerly
been tied to another brand, and increased competition by dealers, could all
produce significant benefits to consumers, especially in terms of price, if
dealers were free to change supplier more frequently than at present. The
Authority considers that market forces should be permitted to determine which
LPG brands are sold through which dealer outlets. Any disadvantage to a
supplier from the risk of losing a dealer at the end of a two-year period of
exclusive purchasing would be offset by its access to other dealers who would
only be tied to other suppliers for two years.
45. The
Authority does not accept that an exclusive purchasing system is indispensable
to ensure adherence to adequate safety standards. Dealers may be selected on
the basis of Irish safety standards, as laid down in I.S. 3213 of 1987, and be
subjected to the same degree of surveillance thereafter as they have been in
the past. There are other ways of ensuring adherence to safety standards than
by means of restrictive trading agreements. The Health and Safety Authority,
following representations from two of the suppliers, has given its view that
the storage of LPG cylinders from more than one supplier in a retail premises
should not represent a greater hazard than storage from a single supplier,
provided there is adherence with the Regulations and the Approved Code of
Practice. The H.S.A. has also stated that the Regulations have no requirements
in respect of single, as opposed to multiple, sources of supply, requiring
primarily safe storage. The Authority is also aware that some LPG suppliers,
and the retailers' association RGDATA, have expressed opposition to exclusive
purchasing arrangements for cylinder LPG. The Authority believes that whatever
limited benefits are provided by exclusive purchase agreements for cylinder LPG
can be achieved with a much shorter period of exclusivity. In particular it
can see no reasons why an exclusive purchase requirement for more than two
years is necessary to secure such benefits. Thus it concludes that, while some
period of exclusivity may well be necessary to achieve such benefits, an
exclusive purchasing requirement for more than two years is not indispensable
for the achievement of the limited benefits which such arrangements bring about.
(c) Elimination of competition
46. Given
the structure of the LPG industry, the Authority considered carefully whether
five year exclusive purchasing agreements represented a significant barrier to
entry which could result in the foreclosure of new entrants. The
long-established firms, Calor and Flogas, have a combined market share of
around 90%. Between them, they have exclusive purchase agreements with well
over 6,000 dealers. Not surprisingly, these dealers are considered to be those
best suited to sell LPG. Establishment of a presence in the market as a
supplier of LPG is an expensive operation. Nevertheless, in spite of the fact
that the LPG market has been dominated by only one or two firms since its
establishment nearly 60 years ago, the Authority considers that the following
facts are also relevant:
(a)
while
some 8,000 dealers are bound under the notified agreements to purchase
exclusively from one supplier for up to five years, there are a significant
number of other potential outlets available to a new entrant for the sale of
LPG, even though many might not be as attractive as the tied outlets;
(b) it
might be expected that, on average, up to 20% of the tied agreements expire
every year, and the dealer would be free to sign a new agreement with the
existing supplier or with another supplier, although it appears than many
existing agreements have been signed recently and will not expire for some
years, and will then expire at around the same time;
(c) in
the case of Flogas, every agreement can be terminated from the end of the
second year of the agreement, although the need to give 12 months' notice of
termination reduces the scope for taking advantage of this possibility;
(d) when
an outlet is sold to a new owner, the latter is not bound by the supply
agreement, and the dealer is free to obtain supplies from any supplier;
(e) it
has been claimed that dealers are changing suppliers more readily, or are
negotiating better deals before renewing an agreement, with competition between
suppliers for dealers becoming more intense; and
(f) the
industry has been marked by the occasional successful entry of new suppliers,
such as Ergas in 1971, Flogas in 1978, Tervas in 1987 and Blugas in 1990.
Although Ergas ceased to exist as a supplier independent of Flogas in 1989,
Blugas appears to have built up a widespread network of dealers and to have
achieved a not insignificant market share in a relatively short period. It was
undoubtedly better placed to do so given its links with distributors of one of
the major oil companies.
9. The
Authority concludes, therefore, that, while the existence of networks of tied
dealers with exclusive purchasing agreements for five years makes it more
difficult to enter the LPG market than in the absence of such arrangements,
access to the retail market is not entirely ruled out and the exclusive
purchasing systems do not operate to absolutely foreclose new entry. At the
same time, the establishment of a large exclusive dealer network by Blugas,
when viewed in conjunction with the Calor and Flogas networks, has made it more
difficult for another supplier to enter the market than it was for Blugas to
enter. On balance, the Authority considers that there is a significant risk
that such five-year arrangements as are contained in the notified agreements
could afford the undertakings the possibility of eliminating competition in
respect of a substantial part of the products in question. A two-year
exclusive purchasing agreement, however, would ensure that all dealer
agreements had to be renewed over a two year period rather than over five
years, and it would be much easier for a new supplier to enter the market, thus
easing the concerns of the Authority in this regard. The Authority considers
that two year agreements would not afford the possibility of the substantial
elimination of competition.
(d) Notice of termination
47. A
period for notice of termination, particularly one as long as 12 months, and in
the context of a two year agreement, would appear to make it difficult for a
dealer to change supplier, and it confers no benefit which could be shared with
consumers. A dealer who terminated the agreement at the end of two years could
be replaced by a dealer who had been tied to another company but whose
agreement had also expired, and, according to the submissions by the two main
suppliers, there are a large number of other potential dealers. A period of
notice of termination, in the Authority's opinion, is not indispensable. There
would, of course, be nothing to prevent the supplier from attempting to
negotiate a new agreement before the current agreement had expired.
(e)
Summary
48. The
Authority considers that exclusive purchasing agreements for five years in
respect of cylinder LPG do not satisfy the conditions specified in
Section
4(2), and a licence may not be granted for such agreements. Agreements which
contain a period for notice of termination do not satisfy the conditions of
Section 4(2), and a licence cannot be granted for these either. The Authority
considers that LPG dealer agreements which oblige the dealer to purchase
exclusively from the supplier for not longer than two years, and not to deal in
competing products for the same period, and which do not oblige the dealer to
give prior notice of termination before the end of the agreed period, satisfy
the conditions of
Section 4(2), and they may be made the subject of the grant
of a category licence.
(ii)
Selection of dealers
49. The
Authority has indicated above that suppliers are entitled to refuse to supply a
dealer who does not satisfy safety requirements without offending against
Section 4(1). It has indicated, however, that, in certain circumstances
selection of dealers on a quantitative, subjective or discriminatory basis may
offend against
Section 4(1).The Authority does not consider that selection of
dealers on such grounds conveys any benefits which may be shared with
consumers, or that it is indispensable. Since the conditions of
Section 4(2)
are not satisfied, arrangements of this nature do not benefit from this
category licence.
(iii)
Price Restrictions
50. Dealer
agreements have required the dealer not to exceed the supplier's official
retail prices and to display a notice showing the current retail prices in a
prominent place, and some have obliged the dealer not to exceed a specified
price. Such clauses in agreements can produce no benefit which could be shared
with consumers, they are not indispensable to the exclusive purchasing
obligation, and they tend to eliminate competition in respect of a substantial
part of the products in question. They satisfy none of the conditions required
for a licence under
Section 4(2) of
the Act, and this category licence does not
apply to agreements which contain any such requirements.
(iv)
Post-term non-compete clauses
51. Agreements
which contain any obligation on the dealer not to compete with the supplier
after termination of the agreement produce no benefits which can be shared with
consumers, and they are not indispensable. They do not satisfy the conditions
of
Section 4(2), and this category licence does not apply to such agreements.
(v)
Limitations on dealing in appliances
52. Agreements
which contain any obligation on the dealer to purchase appliances only from the
LPG supplier, or only from an undertaking specified by the supplier, produce no
benefits which can be shared with consumers, and they are not indispensable.
They do not satisfy the conditions of
Section 4(2), and this category licence
does not apply to such agreements.
Miscellaneous
considerations
Only
two undertakings party
53. This
category licence applies to agreements to which only two undertakings are party
- the supplier and the exclusive purchaser. The benefit of the licence is not
lost if the supplier enters into exclusive purchase agreements with many
different resellers. The licence also applies if the supplier has delegated
certain functions, such as filling cylinders with LPG and/or distributing
cylinders to dealers, to connected or independent undertakings. The category
licence also applies if the agreements do not contain some of the permitted
restrictions, or if the arrangements are less restrictive than those specified,
provided that the essential exclusive purchasing nature of the agreements
remains.
Withdrawal
of the category licence
10. ´Where
the Authority is of the opinion that, having regard to the requirements of
Section 4(2) and to the basis upon which a licence under that subsection was
granted -
(a)
there has been a material change in any of the circumstances on which the
decision was based,
(b)
any party commits a breach of any obligation attached to the decision,
(c)
the licence was based on materially incorrect or misleading information, or
(d)
any party abuses the permission granted to it by the licence,
the
Authority may revoke or amend the licence and, without prejudice to the
generality of this subsection, may in particular insert in a licence conditions
the effect of which is to prohibit specific acts by any party thereto which
would otherwise be authorised pursuant to such a licence.'
11. The
Authority considers that it also has the power, in accordance with Section
8(3), to withdraw the benefit of the category licence in individual cases.
This would be the case where an individual agreement had effects incompatible
with Section 4(2).
Section
5 of the Act
Exclusive
distribution
56. The
licence does not apply where, in addition to the exclusive purchasing
obligation on the reseller, the supplier undertakes with the reseller to supply
only to the reseller certain goods for resale in the whole or in a defined part
of the State. Such an agreement would constitute an exclusive distribution
agreement rather than an exclusive purchasing agreement.
Entry
into force of category licence
57. The
Authority considers that the notified agreements would all have to be amended
in order to satisfy the conditions of the category licence, at least to ensure
that the maximum term of each agreement does not exceed two years. From now
on, any new agreement should have a maximum term of two years, in order to
benefit from the category licence. Many agreements which are already in
existence have not yet been in effect for more than two years. Each of these
would need to be amended so as to expire not more than two years after they
were made. Such agreements would terminate over the next two years, after
which new agreements will have to be negotiated. Most existing agreements,
however, have already been in effect for more than two years. On the coming
into force of the category licence, such agreements, since they do not satisfy
the conditions for a licence, including this category licence, would have to be
terminated forthwith. They could, of course, be replaced by a new two-year
agreement with the same supplier. The category licence shall enter into force
on 28 October 1994.
Notification
58. In
accordance with
Section 4(3)(b) of the
Competition Act, where a licence covers
a category of agreements, agreements within that category which comply with the
terms of the licence need not be notified under
Section 7 to benefit from the
licence while it is in force.
59. The
Authority hopes that suppliers of LPG who wish to benefit from this category
licence in future will ensure that new exclusive purchasing agreements satisfy
the conditions specified in the licence. Agreements which were in existence
on 1 October 1991, and which have been notified to the Authority before 1
October 1992, but which do not fulfil the conditions of the licence, do not
qualify for the benefit of the licence, and the grant of this licence
constitutes a refusal to grant a licence to such existing agreements.
Duration
of category licence
60. The
Authority considers that the operation of this category licence should be
subject to early review. The specified period for the category licence should
be five years. At the end of this period, the duration of the category licence
may be extended, with or without amendments to the licence, if it is considered
that the requirements of
Section 4(2) continue to be fulfilled. The category
licence shall expire on 31 October 1999.
Reporting
conditions
61. In
order to facilitate this early review of the category licence, the Authority
considers that it is necessary to attach certain reporting conditions to the
licence. The suppliers will be required to make an annual report to the
Authority, at the end of each calendar year, in respect of dealers supplied and
sales of cylinder LPG to dealers, so that the Authority can monitor
developments in the market. Thus all suppliers who take advantage of the
category licence will be required, every year before the end of March, to send
a report to the Authority covering the preceding year. The first of these
reports shall be submitted before the end of March 1995. The reports shall
contain the following information:
(a)
the total number of dealer LPG agreements in operation at the end of the
preceding year;
(b)
the total number of new dealer agreements made during the preceding year;
(c)
the total number of dealer agreements terminated during the preceding year; and
(d)
the total volume of sales, in tonnes, to dealers in standard domestic cylinders
(i.e. 11.343 kg) during the preceding year.
The
Decision
62. The
Competition Authority considers that exclusive purchasing agreements by dealers
for cylinder LPG constitute agreements between undertakings which have the
object and effect of preventing, restricting or distorting competition in goods
in the State, and thus they offend against
Section 4(1) of the
Competition Act,
1991. In the opinion of the Authority, having regard to all relevant market
conditions, such agreements, provided that they are of fairly short duration,
that is not more than two years, generally satisfy all the conditions required
for the grant of a category licence under
Section 4(2)of the
Competition Act.
Accordingly, the Competition Authority grants a licence to the specified
category of agreements, subject to the specified period and specified
conditions as required under
Section 8(1) of the
Competition Act, as follows:
The
Category Licence
Article
1
Pursuant
to
Section 4(2) of the
Competition Act, 1991, and subject to the provisions of
this licence, the Competition Authority grants a category licence to agreements
to which only two undertakings are party and whereby one party, the reseller,
agrees with the other, the supplier, to purchase only from the supplier, or
from another undertaking entrusted by the supplier with the distribution of his
goods, cylinder liquified petroleum gas (LPG) for resale.
Article
2
1.
Apart from the obligation referred to in Article 1, no restriction on
competition shall be imposed on the reseller other than the obligation not to
sell cylinder LPG which is supplied by other undertakings in the premises
designated in the agreement while the agreement is in force.
2.
Article 1 shall apply notwithstanding that the reseller undertakes any or all
of the following obligations:
(a) to
purchase minimum quantities, or to take minimum deliveries, of goods which are
subject to the exclusive purchasing obligation;
(b) to
sell the contract goods under trademarks, or only in cylinders owned by the
supplier;
(c) to
take measures for the promotion of sales, in particular:
-
to advertise;
-
to maintain a stock of LPG cylinders and regulators and, where relevant, of
LPG appliances;
-
to provide customer services;
-
to provide display space for appliances.
(d) to
sell only from the premises specified in the agreement;
(e) to
meet safety standards, and to comply with statutory safety provisions,
specified standards, and regulations laid down by the supplier;
(f) to
provide suitable storage, and to allow access by the supplier;
(g)
not
to prejudice the promotion and sale of the goods;
(h) not
to permit any other person to deal in the goods;
(i) to
ensure that cylinders are not filled by unauthorised persons;
(j) to
maintain adequate insurance;
(k) to
supply only customers who have signed an agreement with the supplier;
(l) to
maintain a list of names and addresses of customers, for inspection by the
supplier;
(m) to
sell only recognised appliances and not to sell unsuitable appliances; and
(n) to
permit LPG cylinders to be used only in recognised appliances.
Article
3
12. Article
1 shall not apply where:
(a) the
agreement is concluded for an indefinite duration or for a period of more than
two years;
(b) the
supplier agrees with resellers to limit the number of resellers selected for
reasons other than those related to objective grounds of safety, and in
particular where dealers are selected on the basis of quantitative, subjective
or discriminatory criteria;
(c) the
supplier imposes on the reseller exclusive purchasing obligations for goods
other than cylinder LPG, or for services;
(d)
the
supplier imposes any restriction on the reseller after the date of expiry of
the exclusive purchasing agreement, and in particular imposes an obligation:
-
to conclude a further exclusive purchasing agreement for a fixed or indefinite
period, or
-
not to engage in the purchase and resale of competing goods.
(e) the
supplier obliges the reseller to sell at a fixed price, or at not less than a
minimum price or at not more than a maximum price;
(f) the
supplier recommends to the reseller a specified resale price or a specified
maximum
resale price, unless the reseller is informed that he is free to
determine
his own resale prices;
(g) the
supplier obliges the reseller to display a list of resale prices notified by
the supplier;
(h)
the
supplier obliges the reseller to give any advance notice of termination of the
agreement.
Article
4
13. The
Authority may withdraw the benefit of this category licence, pursuant to
Section 8(3) of the Competition Act, 1991, when it finds in a particular case
that an agreement which is exempted by this licence nevertheless has certain
effects which are incompatible with the conditions set out in Section 4(2) of
the Competition Act.
Article
5
14. This
category licence constitutes a refusal to grant a licence to notified
agreements which do not fulfil its conditions. In particular, the following
agreements, as notified, do not fulfil these requirements:
15. CA/14/92E
- Flogas Ireland Ltd/dealer agreement;
16. CA/213/92E
- Calor Teo/dealer agreement; and
17. CA/538/92E
- Blugas Ltd/dealer agreement.
Article
6
18. This
category licence shall not apply to agreements by which the supplier undertakes
with the reseller to supply only to the reseller cylinder LPG, or LPG for use
in cylinders, for resale, in the whole or in a defined part of the State, and
the reseller undertakes with the supplier to purchase these goods only from the
supplier.
Article
7
19. Suppliers
who take advantage of this category licence are required, every year before the
end of March, to send a report to the Competition Authority in respect of the
following:
(a)
the total number of dealer LPG agreements in operation at the end of the
preceding year;
(b)
the total number of new dealer agreements made during the preceding year;
(c)
the total number of dealer agreements terminated during the preceding year; and
(d)
the total volume of sales, in tonnes, to dealers in standard domestic cylinders
(i.e. 11.343 kg) during the preceding year.
20. The
first of these reports shall be submitted before the end of March 1995.
Article
8
21. This
category licence shall enter into force on 28 October 1994. It shall expire
on 31 October 1999.
For
the Competition Authority
Patrick
M. Lyons
Chairman
28
October 1994.
Notes
1. See,
for example, Commission Decision of 2 October 1991 declaring the
incompatibility with the common market of a concentration -
Aerospatiale-Alenia/de Havilland, (OJ L334, 5.12.91, p. 42, at p.44); and
Commission Notice on agreements of minor importance which do not fall under
Article 85(1) of the Treaty (OJ C231, 12.9.86, p.2).
2. OJ
No. L173, 30.6.83, p.5, as corrected in OJ No. L281, 13.10.83, p. 24, and
Commission Notice concerning the Regulation, OJ No. C101, 13.4.84, p. 2.
3. Commission
decisions of 23 December 1992 under Article 85 - Scholler Lebensmittel GmbH
& Co. KG, OJL 183, 26.7.93, p 1; and Langnese-Iglo GmbH, OJL 183, 26.7.93,
p 19.
4. Decision
No. 4 of 25 June 1992, Esso solus and related agreements, para. 57.
5. Standard
Fashion Co v. Magrane-Houston Co, 258 US 346
(1922).
6. F
M Scherer and D Ross (1990): Industrial Market
Structure
and Economic
Performance,
Houghton Mifflin, Boston.
7. Judgment
of the Court of Justice of 28 February 1991 in the case of Stergios Delimitis v
Henniger Brau A.G.
[1991] ECR I-935.
8. Judgment
of the Court of Justice of 25 October 1977 in the case of Metro v EC Commission
[1977] ECR 1875, at p. 1904.
9. Judgment
of the Court of Justice of 3 July 1985 in the case of SA Binon and Cie V SA
Agence et Messageries de la Presse [1985] ECR 2015, at p. 2044.
10. Commission
decision of 22 December 1976 in the case of GERO-Fabriek, OJ No. L16, 19.1.77,
p. 8, at p. 11.
11. op
cit at para. 57.
© 1994 Irish Competition Authority
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IECompA/1994/364.html
