European law

By Paul Niekirk, barrister

Competition law

The European Commission - in case COMP/M.2314 - BASF/Eurodiol/Pantochim, OJ L 132, 17 May 2002, pp45-64 - ruled that a notified concentration would neither create nor strengthen a dominant position as a result of which effective competition would be significantly impeded.

The proposed concentration would be brought about by an undertaking taking over two failing undertakings.

The commission stated that its acceptance of a 'rescue merger' required that the deterioration of the competitive structure through the merger was at least no worse than in the absence of the merger.

Applying Decision 94/449/EC (OJ L 186, 21 July 1994, p38), the commission set out the following criteria which must be satisfied before it would accept a merger as a rescue merger: the acquired undertaking would in the near future be forced out of the market if not taken over; there was no less anti-competitive alternative purchase; and the assets to be acquired would inevitably 'exit' the market if not taken over by another undertaking.

Loyalty rebates

The commission imposed a penalty of 19,760,000 (about, 12,636,500) on Manufacture Franaise de Pneumatiques Michelin for an infringement between 1990 and 1998 of article 82 of the EC Treaty, by the application of a system of loyalty-inducing rebates to dealers in new replacement tyres and retreaded tyres for trucks and buses in France (case COMP/E-2/36.041/PO - Michelin, OJ L 143, 31 May 2002, pp1-53).

In describing the effect of the rebates, the commission stated that the discount system might affect trade between member states since, by establishing strong links between the dominant supplier and dealers, it restricted the dealers' scope for making their purchases.

Michelin's entire system was aimed at improving the dealers' performance in its favour and thus preventing other manufacturers from obtaining orders.

Many of those manufacturers were established in the Common Market and had large plants which produced heavy tyres.

Their chances of penetrating the French market had been diminished since, on account of the links established between manufacturer and dealers by Michelin's commercial terms, Michelin's market share had been more or less fixed, and consequently other manufacturers' penetration of the French market could not exceed a small percentage.

The effect of Michelin's commercial terms and its consequent maintenance of market share had accordingly been liable to restrict freedom of trade between member states (before 1999 when Michelin's commercial policy was changed).

Secret cartels

The commission has published a notice offering immunity from fines or a reduction in fines in cases of secret cartels (OJ C 45, 19 February 2002, pp3-5).

Immunity from fines may be obtained where an undertaking is the first to submit evidence which - in the commission's view - may enable it either to undertake an investigation under article 14(3) of regulation 17 in connection with an alleged cartel affecting the European Community, or to find an infringement of article 81 EC in such context.

Undertakings which do not meet the conditions for eligibility for immunity from fines may nevertheless be eligible for a reduction in any fine imposed, if the commission regards the evidence submitted by an undertaking to represent significant added value with respect to the evidence previously in the commission's possession, and if the undertaking promptly terminated its involvement in the suspected infringement.

Intellectual property

Regulation (EC) 6/2002 (OJ L 3, 3 January 2002, pp1-24) provides for the introduction of community designs.

A 'design' is defined as the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation.

A design may be protected by being made available to the public as an unregistered community design or by registration with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) as a registered community design.

Unregistered community designs will enjoy protection for three years from the date on which they are first made available to the public within the community.

Upon registration, registered community designs will enjoy protection for five years from the date of the filing of the application, and protection may be renewed for further periods of five years up to a total term of 25 years.

A community design will have a unitary character and enjoy equal effect throughout the community.

A registered community design will confer on its holder the exclusive right to use it and to prevent any third party from using it without consent.

The basis on which protection may be claimed for a design is novelty and individual character.

The registration process will include rights of appeal to boards of appeal by parties adversely affected by decisions.

Appeals against decisions of the Boards of Appeal in relation to infringements of the regulation will go to the European Court of Justice.

Exclusive jurisdiction over infringement actions and invalidity actions is granted to community design courts (designated national courts of first and second instance), which will apply the provisions of the regulation or (in default of such provision) national law, including private international law.

National provisions will cover any further right of appeal from the community design courts of second instance.

Except where expressly provided otherwise, the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters will apply to proceedings relating to community designs, applications for registration and to actions relating to community designs.

Implementing regulations will be adopted at some future date.

The regulation entered into force 60 days after publication, but the date on which the first applications for the registration of community designs may be filed will be announced in due course.

Pollution

The Kyoto protocol to the UN Framework Convention on Climate Change has been approved on behalf of the community by Council Decision 2002/358/EC (OJ L 130, 15 May 2002, pp1-3).

The community and its member states will fulfil their commitments in relation to the reduction of greenhouse gases jointly.

Member states were called upon to deposit their instruments of ratification (as far as possible) by 1 June 2002.

The text of the Kyoto Protocol is annexed to the decision (pp4-18).

Service of documents

Regulation (EC) 1348/2000 made provision for the service of judicial and extra-judicial documents in civil and commercial proceedings throughout the community by delivery to 'receiving agencies' in the different member states (see [2000] Gazette, 3 August, 37).

A 'manual' listing the receiving agencies in the various member states (other than Germany) was annexed to Decision 2001/781/ EC (OJ L 298, 15 November 2001, pp1-478), showing in respect of each agency its name and address, the geographical areas served, the means of receipt of documents which are available (for example, by post), and the languages which may be used in the form of request for the service of documents.

A 'glossary' listing the documents which may be served in accordance with the regulation is also annexed to the decision; the glossary is also set out on a country-by-country basis.

Decision 2001/781/EC has been amended by Decision 2002/350/ EC (OJ L 126, 13 May 2002,

pp1-855) which inserts information regarding receiving agencies in Germany.

The information in the manual and glossary will be kept up to date on the commission's Web site at: http://europa.eu.int/comm/justice_home/unit/civil_reg1348_en.htm