The Gazette 1985

GAZETTE

JULY/AUGUST 1985

How EEC Law Affects Practitioners

Part VI

Senator Mary Robinson, S .C.

T the time of Ireland's entry to the EEC it was

envisaged that the area of law which would have the

most profound effect on practitioners was EEC

competition law. This was the area where there was an

already established and growing body of case law,

consisting of decisions of the Commission exercising its

wide powers of enforcement of competition policy under

Council Regulation 17/62, and judgments of the Court of

Justice either on appeal from decisions of the

Commission or in response to requests by national courts

or tribunals for preliminary rulings under Article 177.

However, this prediction has not been borne out in

reality. Relatively few of the cases before the Irish courts

have concerned issues of competition law. Only a small

number of Irish companies have found it necessary to

notify agreements to the Commission or file a complaint

with the Commission alleging violation of either Article

85 or Article 86 of the EEC Treaty. The basic reason for

this was identified by Finbarr Murphy as follows:

"How will Irish undertakings be affected by the

recent developments in EEC Competition law?

Although it may be a generalisation, the market

behaviour of all but the largest Irish companies will

rarely fall foul of Articles 85(1) and 86 of the EEC

Treaty simply because, in European terms, their

impact on competition is negligible:

de minimis non

curat lex.

There is statistical support for this view: in

the period between 1973 and 1980 there were 129

notifications of agreements concluded by Irish

companies; of this number half were notified in

1973, the year of Irish accession to the

Communities. This leaves us with an average of 10

notifications per year and this figure will be reduced

as the Commission enacts more groups exemption

regulations."

In fact, the number of notifications of agreements for

1984 (from the most recent figures made available by the

Restrictive Practices Commission) was five notifications,

showing a further downward trend.

Nonetheless, as Finbarr Murphy indeed emphasises in

that article, there are a number of reasons why Irish

companies cannot afford to ignore developments in EEC

competition law, and will require expert advice from legal

practitioners.

Complaint to Commission

Where an Irish company claims to be adversely affected

by a restrictive agreement or by the abuse by a dominant

company — whether in the private sector or a State

sponsored body — the best course for that company may

be to explore whether this is an appropriate case in which

to file a complaint with the Commission, which has power

to investigate such complaints under Article 3 of the

Council Reg. 17/62. The first step would be to acquire the

necessary form (Form C) from the Restrictive Practices

Commission, which constitutes an application to the

Commission for the initiation of a procedure of

investigation by it to establish the existence of an infringe-

ment of either Article 85 or 86 of the Treaty. In giving

details of the alleged infringement the complainant is

required to indicate to what extent trade between Member

States may be affected, and also to indicate the

complainant's "legitimate interest" in the initiation by

the Commission of the investigation.

There are a number of examples of complaints lodged

by Irish companies with the Commission which illustrate

the potential of this procedure. For example, in

Re United

Brands,

the Commi s s i on had received separate

complaints from a Danish firm and from an Irish based

fruit importer about the conditions imposed on the

importation and sale of bananas in Denmark and Ireland.

As a consequence of these complaints and other

information which came to the notice of the Commission,

it was decided to initiate very far reaching proceedings

against the American multi-national company United

Brands which resulted in that company being fined for

discriminatory pricing and refusal to supply, in breach of

Article 8 6 /

Similarly, in 1976 the Commission received a

complaint from Ireland that the Penguin paperback

edition of Hemmingway's "The Old Man and the Sea"

was not available in Ireland or the U.K., although it was

freely available in paperback in the other Common

Market countries. The Commission decided to open an

investigation, in the course of which it ascertained that

Jonathan Cape Ltd., the licensee of the copyright in "The

Old Man and the Sea" for the whole of the Common

Market, had sub-licensed Penguin Books Ltd. to publish

a paperback edition of the book in an area which included

all the Common Market Countries except Ireland and the

U.K. However, shortly after the Commission's interven-

tion, Jonathan Cape Ltd. completed new arrangements

with another publisher for Communitywide paperback

publication of several books by Hemmingway, including

"The Old Man and the Sea". Therefore, the Commission

issued a press release in January 1977 to indicate that it

had closed its investigations.

A Northern Ireland company,

Camera Care Ltd.

used

this procedure to considerable effect when it lodged a

complaint with the Commission that the Swedish camera

manufacturer, Hasselblad, and its European distributors

were operating a market sharing scheme which deprived

Camera Care of a supply of Hasselblad cameras. Camera

Care applied to the Commission for urgent action by way

of interim relief but the Commission stated that it had no

power to take interim measures. As a last resort Camera

197