The Gazette 1975

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. 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 Dominant Position