Action for annulment - Competition - Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) - Ice creams intended for immediate consumption - Supply of freezer cabinets to retailers - Exclusivity clause - Barriers to entry to the market - Property rights - Article 222 of the EC Treaty (now Article 295 EC).

«(Action for annulment – Competition – Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) – Ice creams intended for immediate consumption – Supply of freezer cabinets to retailers – Exclusivity clause – Barriers to entry to the market – Property rights – Article 222 of the EC Treaty (now Article 295 EC))» Summary of the Judgment 1.. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Distribution agreements containing an exclusivity clause – Criteria for assessment – Accessibility of the market – Agreements whose cumulative effect is to partition the market – Specific economic context of the agreements taken into account – Distribution agreements for ice cream for immediate consumption under which the manufacturer supplies a freezer cabinet exclusively for storage of its products (EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 2.. Competition – Agreements, decisions and concerted practices – Prohibition – No rule of reason in Community competition law (EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC)) 3.. Competition – Agreements, decisions and concerted practices – Prohibition – Exemption – Conditions – Improvement in the production or distribution of goods – Appraisal by reference to the public interest, not the interests of the parties to the agreement (EC Treaty, Art. 85(3) (now Art. 81(3) EC)) 4.. Competition – Dominant position – Characterised by the holding of extremely large market shares (EC Treaty, Art. 86 (now Art. 82 EC)) 5.. Competition – Dominant position – Meaning (EC Treaty, Art. 86 (now Art. 82 EC)) 6.. Competition – Dominant position – Abuse – Meaning – Objective concept referring to conduct likely to influence the structure of the market and with the effect of hindering the maintenance or development of competition – Obligations on dominant undertakings – Exercise of competition only on the merits (EC Treaty, Art. 86 (now Art. 82 EC)) 7.. Competition – Dominant position – Abuse – Undertaking in a dominant position binding retailers by distribution agreements comtaining an exclusivity clause – Distribution system constituting an abuse (EC Treaty, Art. 86 (now Art. 82 EC)) 8.. Community law – Principles – Fundamental rights – Right to property – Restrictions – Permissibility – Conditions – Restrictions imposed pursuant to the competition rules (EC Treaty, Art. 3(g) (now, after amendment, Art. 3(1)(g) EC) and Arts 85, 86 and 222 (now Arts 81 EC, 82 EC and 295 EC)) 9.. Acts of the institutions – Statement of reasons – Obligation – Scope – Taking the context into account (EC Treaty, Art. 190 (now Art. 253 EC)) 10.. Community law – Principles – Protection of legitimate expectations – Conditions – Notice under Article 19(3) of Regulation No 17 – Legitimate expectation of the future grant of an exemption – None (Council Regulation No 17, Art. 19(3)) 11.. Competition – Community rules – Application by the national courts – Proceedings before national courts concerning the same case or a case similar to that concerned by the administrative procedure before the Commission – Commission decision finding an infringement of the Community rules – Breach of the principles of subsidiarity, sincere cooperation and legal certainty – None (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 12.. Community law – Principles – Proportionality – Equal treatment – Scope – Decision finding a network of agreements to be incompatible with the competition rules and declaring the exclusivity clause in them to be invalid – Appraisal of anti-competitive effects of the network as a whole – Infringement – None JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)23 October 2003 (1) ((Action for annulment – Competition – Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) – Ice creams intended for immediate consumption – Supply of freezer cabinets to retailers – Exclusivity clause – Barriers to entry to the market – Property rights – Article 222 of the EC Treaty (now Article 295 EC))) applicant, v defendant, interveners, THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber), having regard to the written procedure and further to the hearing on 3 October 2002, gives the following On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) R. García-Valdecasas P. Lindh J.D. Cooke H. Jung P. Lindh Registrar President 1 – Language of the case: English.