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Specialization Agreements under the EEC Competition Rules; A Commentary on Regulation No. 417/85

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Each case depends on its own facts. Still, the decided cases give considerable guidance to the Commission's approach to granting individual exemptions. The Commission seems to be concerned primarily with the activities of only the parties subject to the specialization agreement, not with unrelated pursuits of corporate relations of the parties94. The Commission also attributes to th especialization agreements an increase of production with a concomittent lowering of unit costs. The exclusivity will thus help to provide the necessary expanded market. The parties to the agreements discussed above are of different sizes, some have very significant shares of the markets in question. A considerable size of the parties, i.e. substantial turnover or large market shares, normally will make it more difficult to obtain an individual exemption. Still, the individual decisions make it clear that even quite substantial undertakings can obtain the benefit of an individual decision under the right circumstances. This leads to the conclusion that size per se is not a concern to the Commission. Of concern is the restrictive clauses in, to some extent, conjunction with the size. Together, the restrictive clause and the considerable size bring the agreement far within the scope of Article 85(1). That the agreement can be granted an individual exemption due to inherent advantages is another side of the coin. A significant example is Re Lightweight Papers. Once the most rigid clauses in the agreement were withdrawn, an exemption was granted no matter the huge market shares in Benelux and France (70% and 80% respectively). The existence of effective competition is the all important element. No matter the size, an exemption can be had if effective competition prevails.


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