The Effect of the EEC Competition Rules on Distribution of Goods and Services in Europe
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THE EFFECT OF THE EEC COMPETITION
RULES ON DISTRIBUTION OF GOODS
AND SERVICES IN EUROPE
Valentine Korah*
I. EXHAUSTION OF INTELLECTUAL PROPERTY RIGHTS
Jeremy Brown has explained the concept of exhaustion of intellectual property
rights in sophisticated and accurate detail. I shall only conclude that you can sell your
products in East Europe cheaply, in the assurance that you will almost certainly be
able to keep them out of the common market, but that exhaustion operates throughout
the EEA and if you sell cheaply in Ireland or consent to the sale there, you will not
be able to keep the products out of Scandinavia or vice versa.
HI. THE BIFURCATION OF ARTICLE 85(1) AND (3)'
Last year I explained how Article 85(1) prohibits collusion that may affect trade
between member states and has the object or effect of restricting competition. Article
85(3) provides for exemptions, which can be granted only by the EEC Commission.
America is so fortunate in having no general exemption from section I of the
Sherman Act.
One of the unfortunate consequences of the possibility of exemptions has been
that the Commission of the European Communities, the administrative body in charge
of competition policy, has frequently construed the prohibition broadly to forbid
almost any exclusive provisions, and many other restrictions on conduct, subject only
to a de minimis threshold of uncertain level. With a few notable exceptions, it has
* Emeritus Professor of Competition Law, University College, London; Visiting
Professor, Fordham University School of Law; New York; College of Europe, Bruges;
Universidad Carlos III, Madrid; and University of Lusiada, Lisbon and Oporto; Barrister and
Author.
1. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298
U.N.T.S. 11, 47-48 (1958), amended by Single European Act, O.J.L. 169/1 (1987), [1987] 2
C.M.L.R. 741.
Set out in the appendix to this talk. together with Article 53 of the EEA treaty, which
is almost identical save that the agreement must affect trade between the contracting parties
to be caught. In most cases the EEC Commission will be the competent authority, but
sometimes the EFTA Surveillance Authority.
2. Fordham Conference on International Intellectual Property Law and Policy, 4
Fordham Intell. Prop., Media & Ent. L.J. [p. 55 and following] (1993).
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The Effect of the EEC Competition Rules on Distribution of Goods and Services in Europe
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