159 / 336
of the cases in this area, are concerned with exclusive
dealing arrangements on a national scale but applied
exclusively to an agreement made between the Haecht
brewery
and the family
Wilken Jansens.
The
brewery advanced a sum of money to the Wilken Jan-
sens and in return they agreed to take all their supplies
of beer, drinks and lemonade from the brewery for a
period of two years after the repayment of the loan.
The Wilken Jansens broke their agreement and the
brewery brought rn Action against them, whereupon
the Wilken Jansens pleaded that the agreement was
void under Article 85. Unfortunately no decision on
the question of whether the agreement in fact affected
trade between Member States has been given becausc
the brewery after the first decision by the European
Court, notified to the Commission a standard form
Contract, which contained the same clauses as there
were in he Contract in issue, then submitted to the
Court that because of this notification, the Contracts
in issue were provisionally valid and the result of this
was to cause the Belgian Court to submit a further
case to the European Court which appears as de
Haecht and Wilken Number 2 case
48 of 1972 (1973)
C.M.L.R. 287 the effects of which are still being
argued by the writers but the net effect of which un-
fortunately hrd been that the Belgian Court has not yet
got around to making a decision on the point
The
Deuteche
Gramofon
Gesellschaft
case (No.
78 of 1970) (1971) C.M.L.R. 631 is an important
decision which straddles Articles 85 and 86. The
case decidcd that there was a conflict with pro-
visions
regarding
the free
movement of goods
if a manufacturer exercised an exclusive right granted
to him by the legislation of a Member State to market
the protected articles so as to prohibit the marketing
in that State of products sold by him in another Mem-
ber State solely because the markeing had not occured
in the first Member State and (2) that, by exercising
?n Exclusive Distribution Right, a manufacturer did not
have a Dominant Position within the meaning of Art-
icle 86 but that if he could prevent defective compet-
ition in a considerable part of the market, that would
alter the situation. What happened in that case was
that the D.G.G. German record producer distributed
records in Germany under a distribution agreement
containing a Retail Price Maintenance Arrangement.
The retailer h?d to undertake that records acquired from
third parties or imported from abroad had to be sub-
ject to the same system and permission which D.G.G.
obtained. D.G.G. marketed the same records in France
through a subsidiary which was licenced to exploit
D.G.G. records and had exclusive rights for France.
A Company called Metro of Hamburg had refused
to sign retailers agreement with D.G.G. in Germany
and later acquired records from the French subsidiary
of D.G.G. through a Swiss concern and sold them
below the retail price fixed in Germany. D.G.G. got an
injunction prohibiting Metro from selling or distribut-
ing particular records and the German
Appeal
Court asked the European Court to decide whether
the German National Law which allowed the prohibi-
tion to the marketing conflicted with Article 85 of the
Treaty and secondly whether the exercise of the dis-
tribution rights could be regarded as abusive and the
European Court answered both questions in the
affirmative.
Trade Marks and Patents
I: has been held by the European Court in the
Parke Davis
case No. 24 of 1967 (1968) C.M.L.R. 47
that the grant of a patent right did not contravene
Articles 85 or 86 nor did the evercise of a patent right
fall under the prohibition of Article 85 unless there
was a prohibited agreement decision or concerted prac-
tice and that of Article 86 unless it was the subject of
an abuse of dominant position. However, subsequently
in the
Sirena
case No. 40 of 1970 (1971) C.M.L.R. 260,
the European Court held that, before an agreement
relating to a trade mark would be affected by Article
85, it would have to prejudice trade between Member
States to an appreciable amount and restrict competition
in
the
Common
Market.
Also
ownership
of
a trade mark did not automatically place the owner
in a dominant position for the purposes of Article 86.
That Article would not apply merely because the owner
could prohibit Third Parties from marketing products
bearing the same mark in the territory of a Member
State but that, in addition, the trade mark owner would
have to have power to prevent the maintenance of
effective compe'itidh in a considerable part of the mar-
ket in question, before Article 86 would apply.
Dominant Position
Article 86 deals with the abuse by one or more un-
dertakings of a Dominant Position within the Common
Market or in a substantial part of it. Just what con-
stitutes a substantial part of it does not appear to
have been satisfactorily decided but the
Scheldt
Tugs
case of 1964 suggests that the subs!antial part is not
quite as substantial as one might have thought. In
that case three tugboat Companies operating on the
Scheldt and harbour of Antwerp formed a Union
to combine their services and to es'ablish a monopoly
position. Another Company set up in opposition to
them and the Union offered rebates to customers who
would enter into binding contracts for fixed periods.
Wh en the new Company published its conditions of
service the Un i on commenced proceedings calling on
them to cerse circulating these conditions.
The
Antwerp Commercial Court held that the Un i on occu-
pied a monopoly position and were abusing their dom-
inant position. In addi'ion apparently they were also
commiting a wrongful act of unfair competition un-
der Belgian Law.
In the
Brinhof case
(1970) C.M.L.R. 264 the Utrecht
District Court held that the Dutch National Railways
had a dominant position in the market for transport
by rail and that their declining to continue certain
arrangements which they had with Brinkhof was an
abuse of their dominant position. The question of ex-
clusive distributorship agreements was dealt with at
length in a case of
Grundig-Consten
,
Crses 56 and
58/1964 (1966) C.M.L.R. 418, Grundig appointed
Consten exclusive distributors in France of Grundig
157