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Official Journal of the European Communities

C 293/3

Communication made in accordance with Article 19(3) of Council Regulation No 17 ( ) concerning a request for negative clearance or for exemption pursuant to Article 85(3) of the EC Treaty

Case No IV/36.759 — National Sulphuric Acid Association

(98/C 293/03)

(Text with EEA relevance)

I. Procedural background

1. On 12 November 1997 the Commission received notification from the National Sulphuric Acid Association Limited (the Association) in respect of the rules (the Rules) applying to its sulphur joint- purchasing pool (the Pool).

The Rules have already been the subject of two successive exemption Decisions under Article 85(3) of the Treaty. The first exemption (Decision 80/917/EEC) ( ) was granted on 9 July 1980 and was issued for a period ending on 31 December 1988. Following an application of the Association pursuant to Article 8(2) of Regulation No 17, in June 1989 the Commission adopted a Decision (89/408/EEC) ( ) renewing the initial exemption for a period of 10 years, expiring on 31 December 1998.

On 21 March 1994 the Association notified a number of modifications to the Rules of the joint-purchasing pool. The Commission issued a comfort letter on 8 October 1996, confirming that the modified Rules continued to qualify for exemption granted by Decision 89/408/EEC.

II. The facts

2. The key function of the Pool is to negotiate and purchase sulphur on behalf of its members, most of whom are primarily producers of sulphuric acid in the United Kingdom. The Pool is governed by a management committee consisting of one represen- tative of each member of the Pool. The management committee has the authority to act in matters relating to the conduct, affairs and operation of the Pool. The Pool members submit to the Association a statement of their sulphur requirements at six-monthly intervals. The Association enters into the necessary contracts in accordance with the Pool members’ requirements. The Pool members are then obliged to purchase their stated tonnage.

3. The rationale of the Pool is to allow users, many of whom have insufficient requirements to economically justify importing sulphur individually, to benefit from


) OJ 13, 21.2.1962, p. 204/62.


) OJ L 260, 3.10.1980, p. 24.


) OJ L 190, 5.7.1989, p. 22.

the joint purchasing of sulphur through the Pool. Given the high transportation costs and the requirement for specialised handling and storage facilities, only by the aggregation of individual orders can the importation of sulphur be economically viable for such users. The Pool’s enhanced negotiating position with suppliers ensures a greater security of supply at reasonable import prices, which would not otherwise be available to members on an individual basis.

4. Since the 1989 exemption decision the situation of the Pool has evolved as follows:


of notification, eight companies

(compared with 13 in 1988) are members of the Pool. Some companies which have left the Pool source their requirements outside the Pool, and the amount of sulphur purchased outside the Pool has increased. In 1966 purchases of sulphur via the Pool represented approximately 55 % of total sulphur imports into the UK, and 30 % of the total UK consumption of sulphur. In this period, the share of sulphuric acid produced by members of the Pool amounts to just under a third of domestic production. Resales to third parties by Pool members also represent just under a third of the total resale,





following the Commission’s issue of a comfort letter, at the Association’s annual general meeting

on 2 December 1996. Three main changes were adopted. Firstly, access to the Pool was opened to sulphur purchasers who are not producers of sulphuric acid. Secondly, the capacity of the Pool to purchase sulphur on behalf of its members has been extended to the purchase of indigenous UK sulphur. Thirdly, the requirement for a company to purchase a minimum of 25 % of its total purchase of sulphur through the Pool has been removed,







terminate a membership of the Pool on six month’s notice, in circumstances where the member is no longer participating to any appre- ciable degree in the purchasing of sulphur from the Pool, or where the member is in breach of any of the Rules of the Pool. Among these Rules stands a non-competition and non-solicitation clause according to which members shall not,





C 293/4


Official Journal of the European Communities


without the prior consent of the management committee, engage or attempt to engage in the importation of liquid sulphur for resale to any person in the UK; solicit, divert, interfere with or disrupt the Pool’s relationship with any supplier or customer of the Pool or otherwise compete with the Pool activities.

5. As regards the sulphur market, the main evolution has been an increasing availability of indigenous refinery sulphur on the UK market, which had an impact on the balance between imports and domestic consumption. Whereas indigenous sources of sulphur represented approximately 15 % of the total of sulphur used by the industry concerned in the UK in 1989, in 1996 it represented approximately 43 % of the UK market. However, there is a variety of factors limiting the availability of domestic refinery sulphur, and thus there is a continuing requirement for imported sulphur.


sulphuric acid market is in decline, principally due to








a marked reduction in the production of phosphoric acid and fertilisers, whose manufacture requires sulphuric acid. The production of the latter in the UK has declined from approximately 3,6 million tonnes when the first exemption was granted, to 2 million tonnes in 1990 and to an estimated 1,25 million tonnes in 1996.

III. The Commission’s intentions

6. On the basis of the information at its disposal, the Commission intends to take a favourable position on the notified arrangements. Before doing so, the Commission invites interested third parties to send their comments within 30 days of the publication of this notice, quoting reference IV/E-2/36.759/NSAA, to the following address:

European Commission, Directorate-General for Competition (DG IV (E/2)), Rue de la Loi/Wetstraat 200 (Office 02/40), B-1049 Brussels, Fax (32-2) 299 24 64.

Commission notice pursuant to Article 19(3) of Council Regulation No 17 ( ) concerning case No IV/36.581 — T l com D veloppement


(98/C 293/04)

(Text with EEA relevance)


On 9 July 1997 the Commission received notification, pursuant to Article 2 and 4 of Council Regulation No 17, of various agreements concerning T l com D velop- pement (France) (hereinafter referred to as TD) concluded on 11 April 1997 between Soci t Nationale des Chemins de Fer (France) and C g tel (France).

The agreements, in conjunction with the C g tel Agreements (Case No IV/36.592), are part of a trans- action involving the setting-up of the second full-service telecommunications operator in France. The TD joint venture is structural in nature.

( ) OJ 13, 21.2.1962, p. 204/62.


g tel is a jointly-owned subsidiary of Compagnie


n rale des Eaux (France), BT (United Kingdom),

Mannesmann (Germany) and SBCI (United States) and is active in the telecommunications sector in France.

SNCF is a public undertaking with both industrial and commercial activities, providing transport services on the French national rail network. Its core activities are passenger and freight transport, and related and comple- mentary activities.

TD is a jointly-owned subsidiary of SNCF and C g tel, whose field of activities is the construction, maintenance and operation of long-distance telecommunications networks.