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Commission Regulation (EEC) No 2526/85 of 5 August 1985 amending Regulation No 27 as regards the form to be used for applications and notifications under Council Regulation No 17 Official Journal L 240 , 07/09/1985 P. 0001 - 0016 Finnish special edition: Chapter 8 Volume 1 P. 0069 Spanish special edition: Chapter 08 Volume 3 P. 0009 Swedish special edition: Chapter 8 Volume 1 P. 0069 Portuguese special edition Chapter 08 Volume 3 P. 0009

***** COMMISSION REGULATION (EEC) No 2526/85 of 5 August 1985 amending Regulation No 27 as regards the form to be used for applications and notifications under Council Regulation No 17 THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation No 17, First Regulation implementing Articles 85 and 86 of the Treaty, of 6 February 1962 (1), as last amended by the Act of Accession of Greece, and in particular Article 24 thereof, Whereas Commission Regulation No 27 of 3 May 1962 (2), as last amended by the Act of Accession of Greece, lays down, in particular, in Article 4 (1) and (2) thereof that applications under Article 2 of Regulation No 17 relating to the applicability of Article 85 (1) of the Treaty and notifications under Article 4 or Article 5 (2) of Regulation No 17 shall be submitted on Form A/B; Whereas it is desirable to adapt the design of Form A/B in the light of experience and, in particular, of the fact that the form used hitherto does not require applicants to give all the information necessary for a decision; Whereas it is necessary to adapt Form A/B to the needs of the opposition procedure provided for by a number of Regulations on the application of Article 85 (3) of the Treaty to categories of agreements; Whereas it is desirable to permit undertakings making applications under Article 2 of Regulation No 17 relating to the applicability of Article 86 of the Treaty to use Form A/B, HAS ADOPTED THIS REGULATION: Article 1 Regulation No 27 is amended as follows: 1. In Article 2 (1) 'and of the supporting documents' is deleted. 2. Article 4 is replaced by the following: 'Article 4 Content of applications and notifications 1. Applications under Article 2 of Regulation No 17 relating to the applicability of Article 85 (1) of the Treaty and notifications under Article 4 or Article 5 (2) of Regulation No 17 shall be submitted on Form A/B, in the manner prescribed on the Form and in the Complementary Note thereto, as shown in the Annex to this Regulation. 2. Applications and notifications shall contain the information asked for in Form A/B and the Complementary Note. 3. Several participating undertakings may submit an application or notification on a single form. 4. Applications under Article 2 of Regulation No 17 relating to the applicability of Article 86 of the Treaty shall contain a full statement of the facts, specifying, in particular, the practice concerned and the position of the undertaking or undertakings within the common market or a substantial part thereof in regard to products or services to which the practice relates. Form A/B may be used.' 3. The Annex is replaced by the Form A/B and Complementary Note annexed to this Regulation. Article 2 This Regulation shall enter into force on 1 January 1986. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 5 August 1985. For the Commission Peter SUTHERLAND Member of the Commission (1) OJ No 13, 21. 2. 1962, p. 204/62. (2) OJ No 35, 10. 5. 1962, p. 1118/62. ANNEX 1.2.3 // // // // // Note. This form must be accompanied by an Annex containing the information specified in the attached Complementary Note // // // The form and Annex must be supplied in 13 copies (one for the Commission and one for each Member State). Supply three copies of any relevant agreement and one copy of other supporting documents. // FORM A/B // // Please do not forget to complete the Acknowledgement of Receipt annexed. // // // If space is insufficient, please use extra pages, specifying to which item on the form they relate. // // // // TO THE COMMISSION OF THE EUROPEAN COMMUNITIES Directorate-General for Competition, Rue de la Loi, 200, B-1049 Brussels. A. Application for negative clearance pursuant to Article 2 of Council Regulation No 17 of 6 February 1962 relating to implementation of Article 85 (1) or of Article 86 of the Treaty establishing the European Economic Community. B. Notification of an agreement, decision or concerted practice under Article 4 (or 5) of Council Regulation No 17 of 6 February 1962 with a view to obtaining exemption under Article 85 (3) of the Treaty establishing the European Economic Community, including notifications claiming benefit of an opposition procedure. Identity of the parties 1. Identity of applicant/notifier Full name and address, telephone, telex and facsimile numbers, and brief description (1) of the undertaking(s) or association(s) of undertakings submitting the application or notification. For partnerships, sole traders or any other unincorporated body trading under a business name, give, also, the name, forename(s) and address of the proprietor(s) or partner(s). Where an application or notification is submitted on behalf of some other person (or is submitted by more than one person) the name, address and position of the representative (or joint representative) must be given, together with proof of his authority to act. Where an application or notification is submitted by or on behalf of more than one person they should appoint a joint representative (Article 1 (2) and (3) of Commission Regulation No 27). (1) E.g. 'Motor vehicle manufacturer', 'Computer service bureau', 'Conglomerate'. 2. Identity of any other parties Full name and address and brief description of any other parties to the agreement, decision or concerted practice (hereinafter referred to as 'the arrangements'). State what steps have been taken to inform these other parties of this application or notification. (This information is not necessary in respect of standard contracts which an undertaking submitting the application or notification has concluded or intends to conclude with a number of parties (e.g. a contract appointing dealers).) 1.2 // Purpose of this application/notification (see Complementary Note) // (Please answer yes or no to the questions) Are you asking for negative clearance alone? (See Complementary Note - Section IV, end of first paragraph - for the consequence of such a request.) Are you applying for negative clearance, and also notifying the arrangements to obtain an exemption in case the Commission does not grant negative clearance? Are you only notifying the arrangements in order to obtain an exemption? Do you claim that this application may benefit from an opposition procedure? (See Complementary Note - Sections III, IV, VI and VII and Annex 2). If you answer 'yes', please specify the Regulation and Article number on which you are relying. Would you be satisfied with a comfort letter? (See the end of Section VII of the Complementary Note). The undersigned declare that the information given above and in the . . . pages annexed hereto is correct to the best of their knowledge and belief, that all estimates are identified as such and are their best estimates of the underlying facts and that all the opinions expressed are sincere. They are aware of the provisions of Article 15 (1) (a) of Regulation No 17 (see attached Complementary Note). Place and date: 1.2.3 // // Signatures: // Write nothing in this margin 1.2.3 // COMMISSION OF THE EUROPEAN COMMUNITIES Directorate-General for Competition // // Brussels To ACKNOWLEDGEMENT OF RECEIPT (This form will be returned to the address inserted above if the top half is completed in a single copy by the person lodging it) Your application for negative clearance dated: Your notification dated: concerning: Your reference: Parties: 1.2 // 1. // // 2. // and others (There is no need to name the other undertakings party to the arrangement) (To be completed by the Commission.) was received on: and registered under No IV/: Please quote the above number in all correspondence 1.2.3.4 // Provisional address: Rue de la Loi 200 B-1049 Brussels // Telephone: Direct line: 235 . . . . Telephone exchange: 235 11 11 // Telex: COMEU B 21877 // Telegraphic address: COMEUR Brussels COMPLEMENTARY NOTE CONTENTS 1.2 // I. // Purpose of Community rules on competition // II. // Negative clearance // III. // Exemption under Article 85 (3) // IV. // Purpose of the form // V. // Nature of the form // VI. // The need for complete and accurate information // VII. // Subsequent procedure // VIII. // Secrecy // IX. // Further information and headings to be used in Annex to Form A/B Annex 1: Text of Articles 85 and 86 of the EEC Treaty Annex 2: List of relevant Acts Annex 3: List of Member States and Commission Press and Information Offices within the Community Additions or alterations to the information given in these Annexes will be published by the Commission from time to time. Nota bene: Any undertaking uncertain about how to complete a notification or wishing further explanation may contact the Directorate-General for Competition (DG IV) in Brussels. Alternatively, any Commission Information Office (those in the Community are listed in Annex 3) will be able to obtain guidance or indicate an official in Brussels who speaks the preferred official Community language. I. Purpose of Community rules on competition The purpose of these rules is to prevent the distortion of competition in the common market by monopolies or restrictive practices; they apply to any enterprise trading directly or indirectly in the common market, wherever established. Article 85 (1) of the Treaty establishing the European Economic Community (the text of Articles 85 and 86 is reproduced in Annex 1 to this note) prohibits restrictive agreements or concerted practices which may affect trade between Member States, and Article 85 (2) declares contracts or other otherwise legally binding arrangements containing such restrictions void (although the European Court of Justice has held that if restrictive terms of contracts are severable, only those terms are void); Article 85 (3), however, gives the Commission power to exempt practices with beneficial effects. Article 86 prohibits the abuse of a dominant position. The original procedures for implementing these Articles, which provide for 'negative clearance' and exemption under Article 85 (3), were laid down in Council Regulation No 17 (the references to this and all other acts mentioned in this note or relevant to applications made on Form A/B are listed in Annex 2 to this note). II. Negative clearance The purpose of the negative clearance procedure is to allow businesses ('undertakings') to ascertain whether or not the Commission considers that any of their arrangements or behaviour are prohibited under Articles 85 (1) or 86 of the Treaty. (It is governed by Article 2 of Regulation No 17.) Clearance takes the form of a decision by the Commission certifying that, on the basis of the facts in its possession, there are no grounds under Article 85 (1) or 86 of the Treaty for action on its part in respect of the arrangements or behaviour. Any party may apply for negative clearance, even without the consent (but not without the knowledge) of other parties to arrangements. There would be little point in applying, however, where arrangements or behaviour clearly do not fall within the scope of Article 85 (1) or Article 86. (In this connection, your attention is drawn to the last paragraph of IV below and to Annex 2). Nor is the Commission obliged to give negative clearance - Article 2 of Regulation No 17 states that '. . . the Commission may certify . . .'. The Commission does not usually issue negative clearance decisions in cases which, in its opinion, so clearly do not fall within the scope of the prohibition of Article 85 (1) that there is no reasonable doubt for it to resolve by such a decision. III. Exemption under Article 85 (3) The purpose of the procedure for exemption under Article 85 (3) is to allow undertakings to enter into arrangements which, in fact, offer economic advantages but which, without an exemption, would be prohibited under Article 85 (1). (It is governed by Articles 4, 6 and 8 of Regulation No 17 and, for new Member States, by Articles 5, 7 and 25). It takes the form of a decision by the Commission declaring Article 85 (1) to be inapplicable to the arrangements described in the decision. Article 8 requires the Commission to specify the period of validty of any such decision, allows the Commission to attach conditions and obligations and provides for decisions to be amended or revoked or specified acts by the parties to be prohibited in certain circumstances, notably if the decisions were based on incorrect information or if there is any material change in the facts. Any party may notify arrangements, even without the consent (but not without the knowledge) of other parties. The Commission has adopted a number of Regulations granting exemption to categories of agreements. Some of these Regulations (see Annex 2 for the latest list) provide that some agreements may benefit by such an exemption only if they are notified to the Commission under Article 4 (or 5) of Regulation No 17 with a view to obtaining exemption under Article 85 (3) of the Treaty and the benefit of an opposition procedure is claimed in the notification. A decision granting exemption under Article 85 (3) may have retroactive effect but, with certain exceptions, cannot be made effective earlier than the date of notification (Article 6 of Regulation No 17). Should the Commission find that notified arrangements are indeed prohibited by Article 85 (1) and cannot be exempted under Article 85 (3) and, therefore, take a decision condemning them, the parties are nevertheless protected, from the date of notification, against fines for any infringement described in the notification (Articles 3 and 15 (5) and (6)). IV. Purpose of the form The purpose of Form A/B is to allow undertakings, or associations of undertakings, wherever situated, to apply to the Commission for negative clearance for arrangements or behaviour, or to notify such arrangements and apply to have them exempted from the prohibition of Article 85 (1) of the Treaty by virtue of Article 85 (3). The form allows undertakings applying for negative clearance to notify, at the same time, in order to obtain an exemption. It should be noted that only a notification in order to obtain exemption affords immunity from fines (Article 15 (5)). To be valid, applications for negative clearance in respect of Article 85, notifications to obtain an exemption and notifications claiming the benefit of an opposition procedure must be made on Form A/B (by virtue of Article 4 of Commission Regulation No 27). (Undertakings applying for negative clearance for their behaviour in relation to a possible dominant position - Article 86 - need not use Form A/B (see Article 4 (4) of Regulation No 27), but they are strongly recommended to give all the information requested at IX below in order to ensure that their application gives a full statement of the facts.) Before completing a form, your attention is particularly drawn to the Regulations granting block exemption and the notices listed in Annex 2 - these were published to allow undertakings to judge for themselves, in many cases, whether there was any doubt about their arrangements. This would allow them to avoid the considerable bother and expense, both for themselves and for the Commission, of submitting and examining an application or notification where there is clearly no doubt. V. Nature of the form The form consists of a single sheet calling for the identity of the applicant(s) or notifier(s) and of any other parties. This must be supplemented by further information given under the headings and references detailed below (see IX). For preference the paper used should be A4 (21 × 29,7 cm - the same size as the form) but must not be bigger. Leave a margin of at least 25 mm or one inch on the left-hand side of the page and, if you use both sides, on the right-hand side of the reverse. VI. The need for complete and accurate information It is important that applicants give all the relevant facts. Although the Commission has the right to seek further information from applicants or third parties, and is obliged to publish a summary of the application before granting negative clearance or exemption under Article 85 (3), it will usually base its decision on the information provided by the applicant. Any decision taken on the basis of incomplete information could be without effect in the case of a negative clearance, or voidable in that of an exemption. For the same reason, it is also important to inform the Commission of any material changes to your arrangements made after your application or notification. Complete information is of particular importance if you are claiming the benefit of a block exemption through an opposition procedure. Such exemption is dependent on the information supplied being '. . . complete and in accordance with the facts.' If the Commission does not oppose a claim to benefit under this procedure on the basis of the facts in a notification and, subsequently, additional or different facts come to light that could and should have been in the notification, then the benefit of the exemption will be lost, and with retroactive effect. Similarly, there would be little point in claiming the benefit of an opposition procedure with clearly incomplete information; the Commission would be bound either to reject such a notification or oppose exemption in order to allow time for further information to be provided. Moreover, you should be aware of the provisions of Article 15 (1) (a) of Regulation No 17 which reads: 'The Commission may by decision impose on undertakings or associations of undertakings fines of from 100 to 5 000 units of account (1) where, intentionally or negligently, they supply incorrect or misleading information in an application pursuant to Article 2 or in a notification pursuant to Articles 4 or 5.' The key words here are 'incorrect or misleading information'. However, it often remains a matter of judgement how much detail is relevant; the Commission accepts estimates where accurate information is not readily available in order to facilitate notifications; and the Commission calls for opinions as well as facts. You should therefore note that the Commission will use these powers only where applicants or notifiers have, intentionally or negligently, provided false information or grossly inaccurate estimates or suppressed readily available information or estimates, or have deliberately expressed false opinions in order to obtain negative clearance or exemption. VII. Subsequent procedure The application or notification is registered in the Registry of the Directorate-General for Competition (DG IV). The date of receipt by the Commission (or the date of posting if sent by registered post) is the effective date of the submission. The application or notification might be considered invalid if obviously incomplete or not on the obligatory form. Further information might be sought from the applicants or from third parties (Article 11 or 14 of Regulation No 17) and suggestions might be made as to amendments to the arrangements that might make them acceptable. A notification claiming the benefit of an opposition procedure may be opposed by the Commission either because the Commission does not agree that the arrangements should benefit from a block exemption or to allow for more information to be sought. If the Commission opposes a claim, and unless the Commission subsequently withdraws its opposition, that notification will then be treated as an application for an individual exemption decision. If, after examination, the Commission intends to grant the application, it is obliged (by Article 19 (3) of Regulation No 17) to publish a summary and invite comments from third parties. Subsequently, a preliminary draft decision has to be submitted to and discussed with the Advisory Committee on Restrictive Practices and Dominant Positions composed of officials of the Member States competent in the matter of restrictive practices and monopolies (Article 10 of Regulation No 17) - they will already have received a copy of the application or notification. Only then, and providing nothing has happened to change the Commission's intention, can it adopt a decision. Sometimes files are closed without any formal decision being taken, for example, because it is found that the arrangements are already covered by a block exemption, or because the applicants are satisfied by a less formal letter from the Commission's departments (sometimes called a 'comfort letter') indicating that the arrangements do not call for any action by the Commission, at least in present circumstances. Although not a Commission decision, a comfort letter indicates how the Commission's departments view the case on the facts currently in their possession which means that the Commission could if necessary - if, for example, it were to be asserted that a contract was void under Article 85 (2) - take an appropriate decision. VIII. Secrecy Article 214 of the Treaty and Articles 20 and 21 of Regulation No 17 require the Commission and Member States not to disclose information of the kind covered by the obligation of professional secrecy. On the other hand, Article 19 of the Regulation requires the Commission to publish a summary of your application, should it intend to grant it, before taking the relevant decision. In this publication, the Commission '. . . shall have regard to the legitimate interest of undertakings in the protection of their business secrets (Article 19 (3)). In this connection, if you believe that your interests would be harmed if any of the information you are asked to supply were to be published or otherwise divulged to other parties, please put all such information in a second annex, with each page clearly marked 'Business Secrets'; in the principal annex, under any affected heading state 'see second annex' or 'also see second annex'; in the second annex repeat the affected heading(s) and reference(s) and give the information you do not wish to have published, together with your reasons for this. Do not overlook the fact that the Commission may have to publish a summary of your application. Before publishing an Article 19 (3) notice, the Commission will show the undertakings concerned a copy of the proposed text. IX. Further information and headings to be used in the Annex to Form A/B The further information is to be given under the following headings and reference numbers. Wherever possible, give exact information. If this is not readily available, give your best estimate, and identify what you give as an estimate. If you believe any detail asked for to be unavailable or irrelevant, please explain why. This may, in particular, be the case if one party is notifying arrangements alone without the cooperation of other parties. Do not overlook the fact that Commission officials are ready to discuss what detail is relevant (see the nota bene at the beginning of this Complementary Note). An example that might help you is available on request. 1. Brief description Give a brief description of the arrangements or behaviour (nature, purpose, date(s) and duration) - (full details are requested below). 2. Market The nature of the goods or services affected by the arrangements or behaviour (include the customs tariff heading number according to the CCC Nomenclature or the Community's Common Customs Tariff or the Nimexe code if you know it - specify which). A brief description of the structure of the market (or markets) for these goods or services - e.g. who sells in it, who buys in it, its geographical extent, the turnover in it, how competitive it is, whether it is easy for new suppliers to enter the market, whether there are substitute products. If you are notifying a standard contract (e.g. a contract appointing dealers), say how many you expect to conclude. If you know of any studies of the market, it would be helpful to refer to them. 3. Fuller details of the party or parties 3.1. Do any of the parties form part of a group of companies? A group relationship is deemed to exist where a firm: - owns more than half the capital or business assets, or - has the power to exercise more than half the voting rights, or - has the power to appoint more than half the members of the supervisory board, board of directors or bodies legally representing the undertaking, or - has the right to manage the affairs of another. If the answer is yes, give: - the name and address of the ultimate parent company, - a brief description of the business of the group (1) (and, if possible, one copy of the last set of group accounts), - the name and address of any other company in the group competing in a market affected by the arrangements or in any related market, that is to say any other company competing directly or indirectly with the parties ('relevant associated company'). 3.2. The most recently available total turnover of each of the parties and, as the case may be, of the group of which it forms part (it could be helpful also if you could provide one copy of the last set of accounts). 3.3. The sales or turnover of each party in the goods or services affected by the arrangements in the Community and worldwide. If the turnover in the Community is material (say more than a 5 % market share), please also give figures for each Member State (2), and for previous years (in order to show any significant trends), and give each party's sales targets for the future. Provide the same figures for any relevant associated company. (Under this heading, in particular, your best estimate might be all that you can readily supply.) 3.4. In relation to the market (or markets) for the goods or services described at 2 above, give, for each of the sales or turnover figures in 3.3, your estimate of the market share it represents. 3.5. If you have a substantial interest falling short of control (more than 25 % but less than 50 %) in some other company competing in a market affected by the arrangements, or if some other such company has a substantial interest in yours, give its name and address and brief details. 4. Full details of the arrangements 4.1. If the contents are reduced to writing give a brief description of the purpose of the arrangements and attach three copies of the text (except that the technical descriptions often contained in know-how agreements may be omitted; in such cases, however, indicate parts omitted). If the contents are not, or are only partially, reduced to writing, give a full description. 4.2. Detail any provisions contained in the arrangements which may restrict the parties in their freedom to take independent commercial decisions, for examples regarding: - buying or selling prices, discounts or other trading conditions; - the quantities of goods to be manufactured or distributed or services to be offered; - technical development or investment; - the choice of markets or sources of supply; - purchases from or sales to third parties; - whether to apply similar terms for the supply of equivalent goods or services; - whether to offer different goods or services separately or together. (If you are claiming the benefit of an opposition procedure, identify particularly in this list the restrictions that exceed those automatically exempted by the relevant regulation.) 4.3. State between which Member States (1) trade may be affected by the arrangements, and whether trade between the Community and any third countries is affected. 5. Reasons for negative clearance If you are applying for negative clearance state, under the reference: 5.1. why, i.e. state which provision or effects of the arrangements or behaviour might, in your view, raise questions of compatibility with the Community's rules of competition. The object of this subheading is to give the Commission the clearest possible idea of the doubts you have about your arrangements or behaviour that you wish to have resolved by a negative clearance decision. Then, under the following two references, give a statement of the relevant facts and reasons as to why you consider Articles 85 (1) or 86 to be inapplicable, i.e.: 5.2. why the arrangements do not have the object or effect of preventing, restricting or distorting competition within the common market to any appreciable extent, or why your undertaking does not have or its behaviour does not abuse a dominant position; and/or 5.3. why the arrangements or behaviour are not such as may affect trade between Member States to any appreciable extent. 6. Reasons for exemption under Article 85 (3) If you are notifying the arrangements, even if only as a precaution, in order to obtain an exemption under Article 85 (3), explain how: 6.1. the arrangements contribute to improving production or distribution, and/or promoting technical or economic progress; 6.2. a proper share of the benefits arising from such improvement or progress accrues to consumers; 6.3. all restrictive provisions of the arrangements are indispensable to the attainment of the aims set out under 6.1 above (if you are claiming the benefit of an opposition procedure, it is particularly important that you should identify and justify restrictions that exceed those automatically exempted by the relevant Regulation); and 6.4. the arrangements do not eliminate competition in respect of a substantial part of the goods or services concerned. 7. Other information 7.1. Mention any earlier proceedings or informal contacts, of which you are aware, with the Commission and any earlier proceedings with any national authorities or courts concerning these or any related arrangements. 7.2. Give any other information presently available that you think might be helpful in allowing the Commission to appreciate whether there are any restrictions contained in the agreement, or any benefits that might justify them. 7.3. State whether you intend to produce further supporting facts or arguments not yet available and, if so, on which points. 7.4. State, with reasons, the urgency of your application or notification. (1) The value of the European Currency Unit, which has replaced the unit of account, is published daily in the 'C' series of the Official Journal of the European Communities. (1) E.g. 'Motor vehicle manufacturer', 'Computer service bureau', 'Conglomerate'. (2) See list in Annex 3. (1) See list in Annex 3. Annex 1 TEXT OF ARTICLES 85 AND 86 OF THE EEC TREATY ARTICLE 85 1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void. 3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of: - any agreement or category of agreements between undertakings, - any decision or category of decisions by associations of undertakings, - any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. ARTICLE 86 Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. Annex 2 LIST OF RELEVANT ACTS (as of 5 August 1985) (If you think it possible that your arrangements do not need to be notified by virtue of any of these Regulations or notices it may be worth your while to obtain a copy.) IMPLEMENTING REGULATIONS Council Regulation No 17 of 6 February 1962 implementing Articles 85 and 86 of the Treaty (OJ No 13, 21. 2. 1962, p. 204/62, English Special Edition 1959-62, November 1972, p. 87) as amended (OJ No 58, 10. 7. 1962, p. 1655/62; OJ No 162, 7. 11. 1963, p. 2696/63; OJ No L 285, 29. 12. 1971, p. 49; OJ No L 73, 27. 3. 1972, p. 92; OJ No L 291, 19. 11. 1979, p. 94). Commission Regulation No 27 of 3 May 1962 implementing Council Regulation No 17 (OJ No 35, 10. 5. 1962, p. 1118/62, English Special Edition 1959-62, November 1972, p. 87) as amended (OJ No L 189, 1. 8. 1968, p. 1; OJ No L 172, 3. 7. 1975, p. 11; OJ No L 291, 19. 11. 1979, p. 94). REGULATIONS GRANTING BLOCK EXEMPTION IN RESPECT OF A WIDE RANGE OF AGREEMENTS Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive distribution agreements (OJ No L 173, 30. 6. 1983, p. 1, as corrected in OJ No L 281, 13. 10. 1983, p. 24). Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive purchasing agrrements (OJ No L 173, 30. 6. 1983, p. 5, as corrected in OJ No L 281, 13. 10. 1983, p. 24). See also the Commission notice concerning Commission Regulations (EEC) No 1983/83 and (EEC) No 1984/83 of 22 June 1983 on the application fo Article 85 (3) of the Treaty to categories of exclusive distribution and exclusive purchasing agreements (OJ No C 101, 13. 4. 1984, p. 2). Commission Regulation (EEC) No 2349/84 of 23 July 1984 on the application of Article 85 (3) of the Treaty to certain categories of patent licensing agreements (OJ No L 219, 16. 8. 1984, p. 15, as corrected in OJ No L 113, 26. 4. 1985, p. 34). Article 4 of this Regulation provides for an opposition procedure. Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85 (3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ No L 15, 18. 1. 1985, p. 16). See also the Commission notice concerning this Regulation (OJ No C 17, 18. 1. 1985, p. 4). Commission Regulation (EEC) No 417/85 of 19 December 1984 on the application of Article 85 (3) of the Treaty to categories of specialization agreements (OJ No L 53, 22. 2. 1985, p. 1). Article 4 of this Regulation provides for an opposition procedure. Commission Regulation (EEC) No 418/85 of 19 December 1984 on the application of Article 85 (3) of the Treaty to categories of research and development cooperation agreements (OJ No L 53, 22. 2. 1985, p. 5). Article 7 of this Regulation provides for an opposition procedure. COMMISSION NOTICES OF A GENERAL NATURE Commission notice on exclusive dealing contracts with commercial agents (OJ No 139, 24. 12. 1962, p. 2921/62). This states that the Commission does not consider most such agreements to fall under the prohibition of Article 85 (1). Commission notice concerning agreements, decisions and concerted practices in the field of cooperation between enterprises (OJ No C 75, 29. 7. 1968, p. 3, as corrected in OJ No C 84, 28. 8. 1968, p. 14). This defines the sorts of cooperation on market studies, accounting, R & D, joint use of production, storage or transport, ad hoc consortia, selling or after-sales service, advertising or quality labelling that the Commission considers not to fall unter the prohibition of Article 85 (1). Commission notice on agreements, decisions and concerted practices of minor importance which do not fall under Article 85 (1) of the Treaty (OJ No C 313, 29. 12. 1977, p. 3) - in the main, those where the parties have less than 5 % of the market between them, and a combined annual turnover of less than 50 million ECU. Commission notice concerning its assessment of certain subcontracting agreements in relation to Article 85 (1) of the Treaty (OJ No C 1, 3. 1. 1979, p. 2). A collection of these texts (as at 30 June 1981) was published by the Office for Official Publications of the European Communities (Refs. ISBN 92-825-2389-6, Catalogue No CB 30-80-576-EN-C). This is now in short supply in some languages and out of stock in others. An updated collection is in preparation. Annex 3 LIST OF MEMBER STATES AND COMMISSION PRESS AND INFORMATION OFFICES WITHIN THE COMMUNITY (as of 1 January 1986) The Member States as at the date of this Annex are: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom. The addresses of the Commission's Press and Information Offices in the Community are: BELGIUM Rue Archimède 73, B-1040 Bruxelles Tel. 235 11 11 DENMARK Hoejbrohus OEstergade 61 Postbox 144 DK-1004 Koebenhavn K Tel. 14 41 40 FRANCE 61, rue des Belles-Feuilles F-75782 Paris, Cedex 16 Tel. 501 58 85 CMCI/Bureau 320 2, rue Henri Barbusse F-13241 Marseille, Cedex 01 Tel. 08 62 00 FEDERAL REPUBLIC OF GERMANY Zitelmannstrasse 22 D-5300 Bonn Tel. 23 80 41 Kurfuerstendamm 102 D-1000 Berlin 31 Tel. 892 40 28 Erhardtstrasse 27 D-8000 Muenchen Tel. 23 99 29 00 GREECE 2 Vassilissis Sofias TK 1602 GR-Athina 134 Tel. 724 39 82 / 724 39 83 / 724 39 84 IRELAND 39 Molesworth Street IRL-Dublin 2 Tel. 71 22 44 ITALY Via Poli 29 I-00187 Roma Tel. 678 97 22 Corso Magenta 61 I-20123 Milano Tel. 80 15 05 / 6 / 7 / 8 LUXEMBOURG Bâtiment Jean Monnet Rue Alcide de Gasperi L-2920 Luxembourg Tel. 430 11 NETHERLANDS Lange Voorhout 29 NL-Den Haag Tel. 46 93 26 PORTUGAL Rua do Sacremento à Lapa 35 P-1200 Lisboa Tel. 60 21 99 SPAIN Calle de Serrano 41 5a Planta E-1 Madrid Tel. 435 17 00 UNITED KINGDOM 8 Storey's Gate UK-London SW1P 3AT Tel. 222 81 22 Windsor House 9/15 Bedford Street UK-Belfast BT2 7EG Tel. 407 08 4 Cathedral Road UK-Cardiff CF1 9SG Tel. 37 16 31 7 Alva Street UK-Edinburgh EH2 4PH Tel. 225 20 58

*****

COMMISSION REGULATION (EEC) No 2526/85

of 5 August 1985

amending Regulation No 27 as regards the form to be used for applications and notifications under Council Regulation No 17

THE COMMISSION OF THE EUROPEAN

COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community,

Having regard to Council Regulation No 17, First Regulation implementing Articles 85 and 86 of the Treaty, of 6 February 1962 (1), as last amended by the Act of Accession of Greece, and in particular Article 24 thereof,

Whereas Commission Regulation No 27 of 3 May 1962 (2), as last amended by the Act of Accession of Greece, lays down, in particular, in Article 4 (1) and (2) thereof that applications under Article 2 of Regulation No 17 relating to the applicability of Article 85 (1) of the Treaty and notifications under Article 4 or Article 5 (2) of Regulation No 17 shall be submitted on Form A/B;

Whereas it is desirable to adapt the design of Form A/B in the light of experience and, in particular, of the fact that the form used hitherto does not require applicants to give all the information necessary for a decision;

Whereas it is necessary to adapt Form A/B to the needs of the opposition procedure provided for by a number of Regulations on the application of Article 85 (3) of the Treaty to categories of agreements;

Whereas it is desirable to permit undertakings making applications under Article 2 of Regulation No 17 relating to the applicability of Article 86 of the Treaty to use Form A/B,

HAS ADOPTED THIS REGULATION:

Regulation No 27 is amended as follows:

1. In Article 2 (1) 'and of the supporting documents' is deleted.

2. Article 4 is replaced by the following:

'Article 4

Content of applications and notifications

1. Applications under Article 2 of Regulation No 17 relating to the applicability of Article 85 (1) of the Treaty and notifications under Article 4 or Article 5 (2) of Regulation No 17 shall be submitted on Form A/B, in the manner prescribed on the Form and in the Complementary Note thereto, as shown in the Annex to this Regulation.

2. Applications and notifications shall contain the information asked for in Form A/B and the Complementary Note.

3. Several participating undertakings may submit an application or notification on a single form.

4. Applications under Article 2 of Regulation No 17 relating to the applicability of Article 86 of the Treaty shall contain a full statement of the facts, specifying, in particular, the practice concerned and the position of the undertaking or undertakings within the common market or a substantial part thereof in regard to products or services to which the practice relates. Form A/B may be used.'

3. The Annex is replaced by the Form A/B and Complementary Note annexed to this Regulation.

Article 2

This Regulation shall enter into force on 1 January 1986.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 5 August 1985.

For the Commission

Peter SUTHERLAND

Member of the Commission

(1) OJ No 13, 21. 2. 1962, p. 204/62.

(2) OJ No 35, 10. 5. 1962, p. 1118/62.

ANNEX

1.2.3 // // // // // Note. This form must be accompanied by an Annex containing the information specified in the attached Complementary Note // // // The form and Annex must be supplied in 13 copies (one for the Commission and one for each Member State). Supply three copies of any relevant agreement and one copy of other supporting documents. // FORM A/B // // Please do not forget to complete the Acknowledgement of Receipt annexed. // // // If space is insufficient, please use extra pages, specifying to which item on the form they relate. // // // //

TO THE COMMISSION OF THE EUROPEAN COMMUNITIES

Directorate-General for Competition,

Rue de la Loi, 200,

B-1049 Brussels.

A. Application for negative clearance pursuant to Article 2 of Council Regulation No 17 of 6 February 1962 relating to implementation of Article 85 (1) or of Article 86 of the Treaty establishing the European Economic Community.

B. Notification of an agreement, decision or concerted practice under Article 4 (or 5) of Council Regulation No 17 of 6 February 1962 with a view to obtaining exemption under Article 85 (3) of the Treaty establishing the European Economic Community, including notifications claiming benefit of an opposition procedure.

Identity of the parties

1. Identity of applicant/notifier

Full name and address, telephone, telex and facsimile numbers, and brief description (1) of the undertaking(s) or association(s) of undertakings submitting the application or notification.

For partnerships, sole traders or any other unincorporated body trading under a business name, give, also, the name, forename(s) and address of the proprietor(s) or partner(s).

Where an application or notification is submitted on behalf of some other person (or is submitted by more than one person) the name, address and position of the representative (or joint representative) must be given, together with proof of his authority to act. Where an application or notification is submitted by or on behalf of more than one person they should appoint a joint representative (Article 1 (2) and (3) of Commission Regulation No 27).

(1) E.g. 'Motor vehicle manufacturer', 'Computer service bureau', 'Conglomerate'. 2. Identity of any other parties

Full name and address and brief description of any other parties to the agreement, decision or concerted practice (hereinafter referred to as 'the arrangements').

State what steps have been taken to inform these other parties of this application or notification.

(This information is not necessary in respect of standard contracts which an undertaking submitting the application or notification has concluded or intends to conclude with a number of parties (e.g. a contract appointing dealers).)

1.2 // Purpose of this application/notification (see Complementary Note) // (Please answer yes or no to the questions)

Are you asking for negative clearance alone? (See Complementary Note - Section IV, end of first paragraph - for the consequence of such a request.)

Are you applying for negative clearance, and also notifying the arrangements to obtain an exemption in case the Commission does not grant negative clearance?

Are you only notifying the arrangements in order to obtain an exemption?

Do you claim that this application may benefit from an opposition procedure? (See Complementary Note - Sections III, IV, VI and VII and Annex 2). If you answer 'yes', please specify the Regulation and Article number on which you are relying.

Would you be satisfied with a comfort letter? (See the end of Section VII of the Complementary Note).

The undersigned declare that the information given above and in the . . . pages annexed hereto is correct to the best of their knowledge and belief, that all estimates are identified as such and are their best estimates of the underlying facts and that all the opinions expressed are sincere.

They are aware of the provisions of Article 15 (1) (a) of Regulation No 17 (see attached Complementary Note).

Place and date:

1.2.3 // // Signatures: //

Write nothing in this margin

1.2.3 // COMMISSION OF THE EUROPEAN COMMUNITIES Directorate-General for Competition // // Brussels

To

ACKNOWLEDGEMENT OF RECEIPT

(This form will be returned to the address inserted above if the top half is completed in a single copy by the person lodging it)

Your application for negative clearance dated:

Your notification dated:

concerning:

Your reference:

Parties:

1.2 // 1. // // 2. // and others

(There is no need to name the other undertakings party to the arrangement)

(To be completed by the Commission.)

was received on:

and registered under No IV/:

Please quote the above number in all correspondence

1.2.3.4 // Provisional address: Rue de la Loi 200 B-1049 Brussels // Telephone: Direct line: 235 . . . . Telephone exchange: 235 11 11 // Telex: COMEU B 21877 // Telegraphic address: COMEUR Brussels

COMPLEMENTARY NOTE

CONTENTS

1.2 // I. // Purpose of Community rules on competition // II. // Negative clearance // III. // Exemption under Article 85 (3) // IV. // Purpose of the form // V. // Nature of the form // VI. // The need for complete and accurate information // VII. // Subsequent procedure // VIII. // Secrecy // IX. // Further information and headings to be used in Annex to Form A/B

Annex 1: Text of Articles 85 and 86 of the EEC Treaty

Annex 2: List of relevant Acts

Annex 3: List of Member States and Commission Press and Information Offices within the Community

Additions or alterations to the information given in these Annexes will be published by the Commission from time to time.

Nota bene: Any undertaking uncertain about how to complete a notification or wishing further explanation may contact the Directorate-General for Competition (DG IV) in Brussels. Alternatively, any Commission Information Office (those in the Community are listed in Annex 3) will be able to obtain guidance or indicate an official in Brussels who speaks the preferred official Community language.

I. Purpose of Community rules on competition

The purpose of these rules is to prevent the distortion of competition in the common market by monopolies or restrictive practices; they apply to any enterprise trading directly or indirectly in the common market, wherever established. Article 85 (1) of the Treaty establishing the European Economic Community (the text of Articles 85 and 86 is reproduced in Annex 1 to this note) prohibits restrictive agreements or concerted practices which may affect trade between Member States, and Article 85 (2) declares contracts or other otherwise legally binding arrangements containing such restrictions void (although the European Court of Justice has held that if restrictive terms of contracts are severable, only those terms are void); Article 85 (3), however, gives the Commission power to exempt practices with beneficial effects. Article 86 prohibits the abuse of a dominant position. The original procedures for implementing these Articles, which provide for 'negative clearance' and exemption under Article 85 (3), were laid down in Council Regulation No 17 (the references to this and all other acts mentioned in this note or relevant to applications made on Form A/B are listed in Annex 2 to this note).

II. Negative clearance

The purpose of the negative clearance procedure is to allow businesses ('undertakings') to ascertain whether or not the Commission considers that any of their arrangements or behaviour are prohibited under Articles 85 (1) or 86 of the Treaty. (It is governed by Article 2 of Regulation No 17.) Clearance takes the form of a decision by the Commission certifying that, on the basis of the facts in its possession, there are no grounds under Article 85 (1) or 86 of the Treaty for action on its part in respect of the arrangements or behaviour. Any party may apply for negative clearance, even without the consent (but not without the knowledge) of other parties to arrangements. There would be little point in applying, however, where arrangements or behaviour clearly do not fall within the scope of Article 85 (1) or Article 86. (In this connection, your attention is drawn to the last paragraph of IV below and to Annex 2). Nor is the Commission obliged to give negative clearance - Article 2 of Regulation No 17 states that '. . . the Commission may certify . . .'. The Commission does not usually issue negative clearance decisions in cases which, in its opinion, so clearly do not fall within the scope of the prohibition of Article 85 (1) that there is no reasonable doubt for it to resolve by such a decision.

III. Exemption under Article 85 (3)

The purpose of the procedure for exemption under Article 85 (3) is to allow undertakings to enter into arrangements which, in fact, offer economic advantages but which, without an exemption, would be prohibited under Article 85 (1). (It is governed by Articles 4, 6 and 8 of Regulation No 17 and, for new Member States, by Articles 5, 7 and 25). It takes the form of a decision by the Commission declaring Article 85 (1) to be inapplicable to the arrangements described in the decision. Article 8 requires the Commission to specify the period of validty of any such decision, allows the Commission to attach conditions and obligations and provides for decisions to be amended or revoked or specified acts by the parties to be prohibited in certain circumstances, notably if the decisions were based on incorrect information or if there is any material change in the facts.

Any party may notify arrangements, even without the consent (but not without the knowledge) of other parties.

The Commission has adopted a number of Regulations granting exemption to categories of agreements. Some of these Regulations (see Annex 2 for the latest list) provide that some agreements may benefit by such an exemption only if they are notified to the Commission under Article 4 (or 5) of Regulation No 17 with a view to obtaining exemption under Article 85 (3) of the Treaty and the benefit of an opposition procedure is claimed in the notification.

A decision granting exemption under Article 85 (3) may have retroactive effect but, with certain exceptions, cannot be made effective earlier than the date of notification (Article 6 of Regulation No 17). Should the Commission find that notified arrangements are indeed prohibited by Article 85 (1) and cannot be exempted under Article 85 (3) and, therefore, take a decision condemning them, the parties are nevertheless protected, from the date of notification, against fines for any infringement described in the notification (Articles 3 and 15 (5) and (6)).

IV. Purpose of the form

The purpose of Form A/B is to allow undertakings, or associations of undertakings, wherever situated, to apply to the Commission for negative clearance for arrangements or behaviour, or to notify such arrangements and apply to have them exempted from the prohibition of Article 85 (1) of the Treaty by virtue of Article 85 (3). The form allows undertakings applying for negative clearance to notify, at the same time, in order to obtain an exemption. It should be noted that only a notification in order to obtain exemption affords immunity from fines (Article 15 (5)).

To be valid, applications for negative clearance in respect of Article 85, notifications to obtain an exemption and notifications claiming the benefit of an opposition procedure must be made on Form A/B (by virtue of Article 4 of Commission Regulation No 27). (Undertakings applying for negative clearance for their behaviour in relation to a possible dominant position - Article 86 - need not use Form A/B (see Article 4 (4) of Regulation No 27), but they are strongly recommended to give all the information requested at IX below in order to ensure that their application gives a full statement of the facts.) Before completing a form, your attention is particularly drawn to the Regulations granting block exemption and the notices listed in Annex 2 - these were published to allow undertakings to judge for themselves, in many cases, whether there was any doubt about their arrangements. This would allow them to avoid the considerable bother and expense, both for themselves and for the Commission, of submitting and examining an application or notification where there is clearly no doubt.

V. Nature of the form

The form consists of a single sheet calling for the identity of the applicant(s) or notifier(s) and of any other parties. This must be supplemented by further information given under the headings and references detailed below (see IX). For preference the paper used should be A4 (21 × 29,7 cm - the same size as the form) but must not be bigger. Leave a margin of at least 25 mm or one inch on the left-hand side of the page and, if you use both sides, on the right-hand side of the reverse.

VI. The need for complete and accurate information

It is important that applicants give all the relevant facts. Although the Commission has the right to seek further information from applicants or third parties, and is obliged to publish a summary of the application before granting negative clearance or exemption under Article 85 (3), it will usually base its decision on the information provided by the applicant. Any decision taken on the basis of incomplete information could be without effect in the case of a negative clearance, or voidable in that of an exemption. For the same reason, it is also important to inform the Commission of any material changes to your arrangements made after your application or notification.

Complete information is of particular importance if you are claiming the benefit of a block exemption through an opposition procedure. Such exemption is dependent on the information supplied being '. . . complete and in accordance with the facts.' If the Commission does not oppose a claim to benefit under this procedure on the basis of the facts in a notification and, subsequently, additional or different facts come to light that could and should have been in the notification, then the benefit of the exemption will be lost, and with retroactive effect. Similarly, there would be little point in claiming the benefit of an opposition procedure with clearly incomplete information; the Commission would be bound either to reject such a notification or oppose exemption in order to allow time for further information to be provided.

Moreover, you should be aware of the provisions of Article 15 (1) (a) of Regulation No 17 which reads:

'The Commission may by decision impose on undertakings or associations of undertakings fines of from 100 to 5 000 units of account (1) where, intentionally or negligently, they supply incorrect or misleading information in an application pursuant to Article 2 or in a notification pursuant to Articles 4 or 5.'

The key words here are 'incorrect or misleading information'. However, it often remains a matter of judgement how much detail is relevant; the Commission accepts estimates where accurate information is not readily available in order to facilitate notifications; and the Commission calls for opinions as well as facts.

You should therefore note that the Commission will use these powers only where applicants or notifiers have, intentionally or negligently, provided false information or grossly inaccurate estimates or suppressed readily available information or estimates, or have deliberately expressed false opinions in order to obtain negative clearance or exemption.

VII. Subsequent procedure

The application or notification is registered in the Registry of the Directorate-General for Competition (DG IV). The date of receipt by the Commission (or the date of posting if sent by registered post) is the effective date of the submission. The application or notification might be considered invalid if obviously incomplete or not on the obligatory form.

Further information might be sought from the applicants or from third parties (Article 11 or 14 of Regulation No 17) and suggestions might be made as to amendments to the arrangements that might make them acceptable.

A notification claiming the benefit of an opposition procedure may be opposed by the Commission either because the Commission does not agree that the arrangements should benefit from a block exemption or to allow for more information to be sought. If the Commission opposes a claim, and unless the Commission subsequently withdraws its opposition, that notification will then be treated as an application for an individual exemption decision.

If, after examination, the Commission intends to grant the application, it is obliged (by Article 19 (3) of Regulation No 17) to publish a summary and invite comments from third parties. Subsequently, a preliminary draft decision has to be submitted to and discussed with the Advisory Committee on Restrictive Practices and Dominant Positions composed of officials of the Member States competent in the matter of restrictive practices and monopolies (Article 10 of Regulation No 17) - they will already have received a copy of the application or notification. Only then, and providing nothing has happened to change the Commission's intention, can it adopt a decision.

Sometimes files are closed without any formal decision being taken, for example, because it is found that the arrangements are already covered by a block exemption, or because the applicants are satisfied by a less formal letter from the Commission's departments (sometimes called a 'comfort letter') indicating that the arrangements do not call for any action by the Commission, at least in present circumstances. Although not a Commission decision, a comfort letter indicates how the Commission's departments view the case on the facts currently in their possession which means that the Commission could if necessary - if, for example, it were to be asserted that a contract was void under Article 85 (2) - take an appropriate decision.

VIII. Secrecy

Article 214 of the Treaty and Articles 20 and 21 of Regulation No 17 require the Commission and Member States not to disclose information of the kind covered by the obligation of professional secrecy. On the other hand, Article 19 of the Regulation requires the Commission to publish a summary of your application, should it intend to grant it, before taking the relevant decision. In this publication, the Commission '. . . shall have regard to the legitimate interest of undertakings in the protection of their business secrets (Article 19 (3)). In this connection, if you believe that your interests would be harmed if any of the information you are asked to supply were to be published or otherwise divulged to other parties, please put all such information in a second annex, with each page clearly marked 'Business Secrets'; in the principal annex, under any affected heading state 'see second annex' or 'also see second annex'; in the second annex repeat the affected heading(s) and reference(s) and give the information you do not wish to have published, together with your reasons for this. Do not overlook the fact that the Commission may have to publish a summary of your application.

Before publishing an Article 19 (3) notice, the Commission will show the undertakings concerned a copy of the proposed text.

IX. Further information and headings to be used in the Annex to Form A/B

The further information is to be given under the following headings and reference numbers. Wherever possible, give exact information. If this is not readily available, give your best estimate, and identify what you give as an estimate. If you believe any detail asked for to be unavailable or irrelevant, please explain why. This may, in particular, be the case if one party is notifying arrangements alone without the cooperation of other parties. Do not overlook the fact that Commission officials are ready to discuss what detail is relevant (see the nota bene at the beginning of this Complementary Note). An example that might help you is available on request. 1. Brief description

Give a brief description of the arrangements or behaviour (nature, purpose, date(s) and duration) - (full details are requested below).

2. Market

The nature of the goods or services affected by the arrangements or behaviour (include the customs tariff heading number according to the CCC Nomenclature or the Community's Common Customs Tariff or the Nimexe code if you know it - specify which). A brief description of the structure of the market (or markets) for these goods or services - e.g. who sells in it, who buys in it, its geographical extent, the turnover in it, how competitive it is, whether it is easy for new suppliers to enter the market, whether there are substitute products. If you are notifying a standard contract (e.g. a contract appointing dealers), say how many you expect to conclude. If you know of any studies of the market, it would be helpful to refer to them.

3. Fuller details of the party or parties

3.1. Do any of the parties form part of a group of companies? A group relationship is deemed to exist where a firm:

- owns more than half the capital or business assets, or

- has the power to exercise more than half the voting rights, or

- has the power to appoint more than half the members of the supervisory board, board of directors or bodies legally representing the undertaking, or

- has the right to manage the affairs of another.

If the answer is yes, give:

- the name and address of the ultimate parent company,

- a brief description of the business of the group (1) (and, if possible, one copy of the last set of group accounts),

- the name and address of any other company in the group competing in a market affected by the arrangements or in any related market, that is to say any other company competing directly or indirectly with the parties ('relevant associated company').

3.2. The most recently available total turnover of each of the parties and, as the case may be, of the group of which it forms part (it could be helpful also if you could provide one copy of the last set of accounts).

3.3. The sales or turnover of each party in the goods or services affected by the arrangements in the Community and worldwide. If the turnover in the Community is material (say more than a 5 % market share), please also give figures for each Member State (2), and for previous years (in order to show any significant trends), and give each party's sales targets for the future. Provide the same figures for any relevant associated company. (Under this heading, in particular, your best estimate might be all that you can readily supply.)

3.4. In relation to the market (or markets) for the goods or services described at 2 above, give, for each of the sales or turnover figures in 3.3, your estimate of the market share it represents.

3.5. If you have a substantial interest falling short of control (more than 25 % but less than 50 %) in some other company competing in a market affected by the arrangements, or if some other such company has a substantial interest in yours, give its name and address and brief details.

4. Full details of the arrangements

4.1. If the contents are reduced to writing give a brief description of the purpose of the arrangements and attach three copies of the text (except that the technical descriptions often contained in know-how agreements may be omitted; in such cases, however, indicate parts omitted).

If the contents are not, or are only partially, reduced to writing, give a full description.

4.2. Detail any provisions contained in the arrangements which may restrict the parties in their freedom to take independent commercial decisions, for examples regarding:

- buying or selling prices, discounts or other trading conditions;

- the quantities of goods to be manufactured or distributed or services to be offered;

- technical development or investment;

- the choice of markets or sources of supply;

- purchases from or sales to third parties;

- whether to apply similar terms for the supply of equivalent goods or services;

- whether to offer different goods or services separately or together.

(If you are claiming the benefit of an opposition procedure, identify particularly in this list the restrictions that exceed those automatically exempted by the relevant regulation.)

4.3. State between which Member States (1) trade may be affected by the arrangements, and whether trade between the Community and any third countries is affected.

5. Reasons for negative clearance

If you are applying for negative clearance state, under the reference:

5.1. why, i.e. state which provision or effects of the arrangements or behaviour might, in your view, raise questions of compatibility with the Community's rules of competition. The object of this subheading is to give the Commission the clearest possible idea of the doubts you have about your arrangements or behaviour that you wish to have resolved by a negative clearance decision.

Then, under the following two references, give a statement of the relevant facts and reasons as to why you consider Articles 85 (1) or 86 to be inapplicable, i.e.:

5.2. why the arrangements do not have the object or effect of preventing, restricting or distorting competition within the common market to any appreciable extent, or why your undertaking does not have or its behaviour does not abuse a dominant position; and/or

5.3. why the arrangements or behaviour are not such as may affect trade between Member States to any appreciable extent.

6. Reasons for exemption under Article 85 (3)

If you are notifying the arrangements, even if only as a precaution, in order to obtain an exemption under Article 85 (3), explain how:

6.1. the arrangements contribute to improving production or distribution, and/or promoting technical or economic progress;

6.2. a proper share of the benefits arising from such improvement or progress accrues to consumers;

6.3. all restrictive provisions of the arrangements are indispensable to the attainment of the aims set out under 6.1 above (if you are claiming the benefit of an opposition procedure, it is particularly important that you should identify and justify restrictions that exceed those automatically exempted by the relevant Regulation); and

6.4. the arrangements do not eliminate competition in respect of a substantial part of the goods or services concerned.

7. Other information

7.1. Mention any earlier proceedings or informal contacts, of which you are aware, with the Commission and any earlier proceedings with any national authorities or courts concerning these or any related arrangements.

7.2. Give any other information presently available that you think might be helpful in allowing the Commission to appreciate whether there are any restrictions contained in the agreement, or any benefits that might justify them.

7.3. State whether you intend to produce further supporting facts or arguments not yet available and, if so, on which points.

7.4. State, with reasons, the urgency of your application or notification.

(1) The value of the European Currency Unit, which has replaced the unit of account, is published daily in the 'C' series of the Official Journal of the European Communities.

(1) E.g. 'Motor vehicle manufacturer', 'Computer service bureau', 'Conglomerate'.

(2) See list in Annex 3.

(1) See list in Annex 3.

Annex 1

TEXT OF ARTICLES 85 AND 86 OF THE EEC TREATY

ARTICLE 85

1. The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.

3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:

- any agreement or category of agreements between undertakings,

- any decision or category of decisions by associations of undertakings,

- any concerted practice or category of concerted practices,

which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:

(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.

ARTICLE 86

Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

Annex 2

LIST OF RELEVANT ACTS

(as of 5 August 1985)

(If you think it possible that your arrangements do not need to be notified by virtue of any of these Regulations or notices it may be worth your while to obtain a copy.)

IMPLEMENTING REGULATIONS

Council Regulation No 17 of 6 February 1962 implementing Articles 85 and 86 of the Treaty (OJ No 13, 21. 2. 1962, p. 204/62, English Special Edition 1959-62, November 1972, p. 87) as amended (OJ No 58, 10. 7. 1962, p. 1655/62; OJ No 162, 7. 11. 1963, p. 2696/63; OJ No L 285, 29. 12. 1971, p. 49; OJ No L 73, 27. 3. 1972, p. 92; OJ No L 291, 19. 11. 1979, p. 94).

Commission Regulation No 27 of 3 May 1962 implementing Council Regulation No 17 (OJ No 35, 10. 5. 1962, p. 1118/62, English Special Edition 1959-62, November 1972, p. 87) as amended (OJ No L 189, 1. 8. 1968, p. 1; OJ No L 172, 3. 7. 1975, p. 11; OJ No L 291, 19. 11. 1979, p. 94).

REGULATIONS GRANTING BLOCK EXEMPTION IN RESPECT OF A WIDE RANGE OF AGREEMENTS

Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive distribution agreements (OJ No L 173, 30. 6. 1983, p. 1, as corrected in OJ No L 281, 13. 10. 1983, p. 24).

Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive purchasing agrrements (OJ No L 173, 30. 6. 1983, p. 5, as corrected in OJ No L 281, 13. 10. 1983, p. 24).

See also the Commission notice concerning Commission Regulations (EEC) No 1983/83 and (EEC) No 1984/83 of 22 June 1983 on the application fo Article 85 (3) of the Treaty to categories of exclusive distribution and exclusive purchasing agreements (OJ No C 101, 13. 4. 1984, p. 2).

Commission Regulation (EEC) No 2349/84 of 23 July 1984 on the application of Article 85 (3) of the Treaty to certain categories of patent licensing agreements (OJ No L 219, 16. 8. 1984, p. 15, as corrected in OJ No L 113, 26. 4. 1985, p. 34). Article 4 of this Regulation provides for an opposition procedure.

Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85 (3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ No L 15, 18. 1. 1985, p. 16). See also the Commission notice concerning this Regulation (OJ No C 17, 18. 1. 1985, p. 4).

Commission Regulation (EEC) No 417/85 of 19 December 1984 on the application of Article 85 (3) of the Treaty to categories of specialization agreements (OJ No L 53, 22. 2. 1985, p. 1). Article 4 of this Regulation provides for an opposition procedure.

Commission Regulation (EEC) No 418/85 of 19 December 1984 on the application of Article 85 (3) of the Treaty to categories of research and development cooperation agreements (OJ No L 53, 22. 2. 1985, p. 5). Article 7 of this Regulation provides for an opposition procedure. COMMISSION NOTICES OF A GENERAL NATURE

Commission notice on exclusive dealing contracts with commercial agents (OJ No 139, 24. 12. 1962, p. 2921/62). This states that the Commission does not consider most such agreements to fall under the prohibition of Article 85 (1).

Commission notice concerning agreements, decisions and concerted practices in the field of cooperation between enterprises (OJ No C 75, 29. 7. 1968, p. 3, as corrected in OJ No C 84, 28. 8. 1968, p. 14). This defines the sorts of cooperation on market studies, accounting, R & D, joint use of production, storage or transport, ad hoc consortia, selling or after-sales service, advertising or quality labelling that the Commission considers not to fall unter the prohibition of Article 85 (1).

Commission notice on agreements, decisions and concerted practices of minor importance which do not fall under Article 85 (1) of the Treaty (OJ No C 313, 29. 12. 1977, p. 3) - in the main, those where the parties have less than 5 % of the market between them, and a combined annual turnover of less than 50 million ECU.

Commission notice concerning its assessment of certain subcontracting agreements in relation to Article 85 (1) of the Treaty (OJ No C 1, 3. 1. 1979, p. 2).

A collection of these texts (as at 30 June 1981) was published by the Office for Official Publications of the European Communities (Refs. ISBN 92-825-2389-6, Catalogue No CB 30-80-576-EN-C). This is now in short supply in some languages and out of stock in others. An updated collection is in preparation.

Annex 3

LIST OF MEMBER STATES AND COMMISSION PRESS AND INFORMATION OFFICES WITHIN THE COMMUNITY

(as of 1 January 1986)

The Member States as at the date of this Annex are: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain and the United Kingdom.

The addresses of the Commission's Press and Information Offices in the Community are:

BELGIUM

Rue Archimède 73,

B-1040 Bruxelles

Tel. 235 11 11

DENMARK

Hoejbrohus

OEstergade 61

Postbox 144

DK-1004 Koebenhavn K

Tel. 14 41 40

FRANCE

61, rue des Belles-Feuilles

F-75782 Paris, Cedex 16

Tel. 501 58 85

CMCI/Bureau 320

2, rue Henri Barbusse

F-13241 Marseille, Cedex 01

Tel. 08 62 00

FEDERAL REPUBLIC OF GERMANY

Zitelmannstrasse 22

D-5300 Bonn

Tel. 23 80 41

Kurfuerstendamm 102

D-1000 Berlin 31

Tel. 892 40 28

Erhardtstrasse 27

D-8000 Muenchen

Tel. 23 99 29 00

GREECE

2 Vassilissis Sofias

TK 1602

GR-Athina 134

Tel. 724 39 82 / 724 39 83 / 724 39 84

IRELAND

39 Molesworth Street

IRL-Dublin 2

Tel. 71 22 44

ITALY

Via Poli 29

I-00187 Roma

Tel. 678 97 22

Corso Magenta 61

I-20123 Milano

Tel. 80 15 05 / 6 / 7 / 8

LUXEMBOURG

Bâtiment Jean Monnet

Rue Alcide de Gasperi

L-2920 Luxembourg

Tel. 430 11

NETHERLANDS

Lange Voorhout 29

NL-Den Haag

Tel. 46 93 26

PORTUGAL

Rua do Sacremento à Lapa 35

P-1200 Lisboa

Tel. 60 21 99

SPAIN

Calle de Serrano 41

5a Planta

E-1 Madrid

Tel. 435 17 00

UNITED KINGDOM

8 Storey's Gate

UK-London SW1P 3AT

Tel. 222 81 22

Windsor House

9/15 Bedford Street

UK-Belfast BT2 7EG

Tel. 407 08

4 Cathedral Road

UK-Cardiff CF1 9SG

Tel. 37 16 31

7 Alva Street

UK-Edinburgh EH2 4PH

Tel. 225 20 58