The Gazette 1985

GAZETTE JULY/AUGUST 1985 How EEC Law Affects Practitioners Part VI

by Senator Mary Robinson, S .C.

A 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." 1 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, 2 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. 4 A Northern Ireland company, Camera Care Ltd. 5 , 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