This Decision is addressed to:
Éditions Nathan
9, rue Méchain F - 75676 Paris CEDEX 14
Bricolux SA
2, Rue Saint Isidore, Zone industriel B - 6900 Marloie.
This Decision shall be enforceable pursuant to Article 256 of the EC Treaty.
Done at Brussels, 5 July 2000.
For the Commission
Mario Monti
Member of the Commission
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ 148, 15.6.1999, p. 5.
(3) OJ 127, 20.8.1963, p. 2268/63.
(4) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(5) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(6) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(7) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(8) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(9) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(10) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(11) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(12) Clearly, the needs of two-year old children and the material to meet those needs will not be the same as for eight-year olds, except in the case of special education. Nine is regarded as the threshold age over which the content of teaching material is aimed more at the acquisition of knowledge than at developing children's abilities. For instance, Nathan considers that its products are aimed at day nurseries and children aged two to six (statement made by the head of Nathan's educational material department to the French authorities, sent to the Commission by Nathan).
(13) For example, wooden puzzles were sold for FRF 95 in the 1997 Nathan catalogue, i.e. 33 times less than plastic assembly kits intended to improve motor ability.
(14) As the establishments work towards achieving a balanced development of the children, the products intended as teaching material for a particular area, for example, motor ability, cannot generally be replaced by those used in a different area, e.g. basic mathematics.
(15) For example, six-year olds in Spain will have 70 hours a year of artistic activities compared with 143 hours a year for Belgian pupils. (Eurydice report "Pre-school and primary education in the European Union", 1994).
(16) For example, the inclusion of musical activities in the curriculum will encourage manufacturers, with the help of educational research teams, to develop suitable products. In the words of a competitor in the field, "Educational material is designed with a view to the requirements of teachers and educators, sticking as closely as possible to school curricula". In its reply of 1 October 1997 to the Commission's request for information, Nathan also based its design of the material and segments on the official Ministry programme.
(17) Nathan's reply of 1 October 1997 to the Commission request for information (see recital 116).
(18) The age at which children first attend school varies from two to four, depending on the educational system, whilst the total number of hours of teaching varies according to age bracket and also within the age bracket. A six-year old in Italy would be expected to attend school for 1080 hours a year, compared with 773 hours a year in the United Kingdom (Eurydice report cited above).
(19) In the first two instances, purchases are usually grouped together by administrative region and then delivered to each establishment. The last two groups have more autonomy. The extent to which orders are grouped together can also modify purchasers' buying power in their dealings with producers and distributors.
(20) From 13,6 % of French children to 39,5 % of Belgian children in the private sector (subsidised or not), and from 86,4 % of French children to 60,5 % of Belgian children in the public sector (Eurydice report cited above).
(21) "Survey of the market for educational material" sent to Nathan and Bricolux by the Commission on 30 September 1999.
(22) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(23) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(24) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(25) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(26) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(27) Estimate based on a ratio of expenditure per child equivalent to that for France, including all categories of schools, i.e. FRF 89 and a population of 42,4 million children under the age of nine in the fifteen Member States in 1997. As the ratio differs depending on the Member State, extrapolating the French ratio to cover the entire Community amounts to using it as an average between the Member States where expenditure per child is less and those where it is more. The estimate for the Community is provided as an order of magnitude; the market shares to be taken into account are those for the various exclusive territories.
(28) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(29) This estimate is based on the total turnovers of the nine leading participants, as communicated to the Commission, plus the remaining 42,4 % which, taking an average of their estimates, is held by the other smaller participants. ("Survey of the market for educational material", cited above).
(30) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(31) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(32) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(33) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(34) Nielsen, "Ressources et dépenses des écoles maternelles publiques", July 1996, pp. 83 et seq. However, the market analysed in that study is much larger than the relevant market in the present case. The study includes books, audiovisual material etc., where a language component is decisive. The figure of [between 5 % and 15 %](35)(35) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
for State schools alone is therefore an underestimate as regards educational material only. The small gap of [less than 5 %](36)(36) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
compared with the market share of all establishments and all educational material segments in 1997 is also due to the fact that Nathan has a stronger presence than its competitors in other segments such as nurseries, day-care centres, hospitals and holiday camps, which account for 24,2 % of total demand.
(37) On the basis of 478000 children reported by the French-speaking Community authorities and an expenditure of FRF 89 per child (ratio for France). The French ratio is well above the Bricolux estimates of the ratio per pupil in French-speaking Belgium (ratio per pupil BEF 75, letter of 26 September 1997) and those given by Viroux, a Bricolux competitor (ratio per pupil BEF 300, letter of 17 June 1999).
(38) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(39) Letter from Nathan of 28 October 1999 in response to the "Survey of the market for educational material" sent to Nathan and Bricolux on 30 September 1999 putting its sales to Bricolux in 1997 at FRF [less than 5 million](40)(40) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
adjusted by the coefficient of [...](41)(41) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
applied by Bricolux as its gross margin.
(42) In the absence of any compatible estimates provided by the Italian firms questioned, the estimate is based on the ratio of expenditure per child of FRF 89 calculated for France, which includes all categories of establishment.
(43) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(44) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(45) Letter from Borgione of 2 October 1997, attached to the statement of objections.
(46) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(47) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(48) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(49) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(50) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(51) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(52) In a statement forwarded by Nathan to the Commission, the manager of Nathan's educational material department explained that, "We also work with booksellers (about 200). These act as our letterboxes ... Our customers can use either the order form in the catalogue, or go to their local bookseller. The latter enjoys a discount of [15 % to 25 %](53)(53) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
on our catalogue price, depending on the turnover achieved."
(54) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(55) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(56) Abacus has been the de facto exclusive distributor since 1989 of Nathan products in Spain and Portugal. The Nottingham Group has held the exclusive distribution rights for certain products in the Nathan catalogue for the United Kingdom and Ireland since 1993. Their commercial relations with Nathan are not, however, formalised in a written contract. In its answer to the request for information from the Commission, the Nottingham Group states that it does not regard itself as an exclusive distributor for Nathan.
(57) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(58) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(59) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(60) Comments by Nathan of 27 October 1998, p. 13, Annex 6.
(61) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(62) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(63) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(64) Comments by Nathan of 27 October 1998, p. 13, Annex 6.
(65) Draft contract of 2 September 1993. Bricolux letter to Nathan of 5 November 1993.
(66) Letter from Nathan to Bricolux.
(67) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(68) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(69) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(70) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(71) Letter from Ms Marrot, of Nathan, to Mr Collard, of Bricolux, 25 February 1993. Letter from Mr Hublau, Director-General of Larousse Belgium, to Mr Collard, of Bricolux, 9 December 1991.
(72) Letter from Bricolux to Nathan of 24 January 1994. On a fax of 12 January 1994 from Nathan (Ms Marrot) to Bricolux (Mr Collard), in which Nathan refers to "the agreement of Bricolux that in the Belgian and Luxembourg catalogues we should keep the yellow marks relating to price reductions or unchanged prices, as you pass it on to your prices in BF", there is a hand-written note signed by Alain Collard reading, "Okay, no objection to leaving the yellow marks".
(73) Letter from Bricolux to the Commission of 2 December 1997 replying to a request for information dated 24 November 1997.
(74) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(75) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(76) Comments by Nathan of 27 October 1998, p. 14, Annex 6.
(77) Letter from Bricolux dated 26 September 1997.
(78) Letter from Mr Collard, of Bricolux, to Ms Cagnon, Librairie Vauban, 23 March 1995. Mr Grimbert was export manager of Nathan's educational material department.
(79) Letter sent by Nathan on 14 January 1999 with its comments to clarify points raised at the hearing on 3 December 1998.
(80) Letter from Bricolux to Vauban of 4 May 1995, sent by Bricolux with its comments on 11 December 1998 to clarify points raised at the hearing on 3 December 1998.
(81) Letter from Bricolux to Mr Alvain, Department for Competition, Lille, sent by Bricolux, with its comments, on 11 December 1998 to clarify points raised at the hearing on 3 December 1998.
(82) Fax from Ms Marrot, head of the export department at Nathan, to Mr Collard at Bricolux, dated 25 October 1995; forwarded by Bricolux, with its comments, on 11 December 1998, to clarify points raised at the hearing on 3 December 1998, and sent for comment to Nathan, which replied on 14 January 1999, to clarify points raised at the hearing on 3 December 1998.
(83) Fax from Mr Collard of Bricolux to Nathan's export department dated 23 May 1997.
(84) Fax from Mr Collard of Bricolux to Mr Langlois-Meurinne, Director-General of Nathan, dated 30 May 1997.
(85) See most recently C-306/96 Javico v Yves Saint Laurent Parfums [1998] ECR I-1983, paragraph 13, citing in particular Case 86/82 Hasselblad v Commission [1984] ECR 883, paragraph 46 and Case C-70/93 BMW v ALD [1995] ECR I-3439, paragraphs 19 and 21.
(86) Case C-306/96 Javico v Yves Saint Laurent Parfums [1998] ECR I-1983, paragraph 14, which refers also to Case C-279/87 Tipp-Ex v Commission [1990] ECR I-261, paragraph 22, and Case 19/77, Miller International Schallplatten v Commission [1978] ECR 131, paragraph 7.
(87) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(88) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(89) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(90) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(91) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(92) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(93) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(94) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(95) OJ L 13, 15.1.1987, p. 39, paragraph 12(c).
(96) OJ C 365, 26.11.1998, p. 3.
(97) Case T-13/89, ICI v Commission [1992] ECR II-1021, paragraphs 310 and 311.
(98) See judgment in Javico cited above, paragraphs 15 to 17, which refers to Case 5/69 Völk v Vervaecke [1969] ECR 295, paragraph 5.
(99) Judgment in Javico cited above, paragraph 16.
(100) Case 99/79, Lancôme and Cosparfrance Nederland [1980] ECR 2511, paragraph 24.
(101) OJ L 357, 29.12.1976, p. 40, paragraphs 4, 15 and 16.
(102) Case 19/77, Miller International Schallplatten v Commission, [1978] ECR 131, paragraphs 8, 9, 10 and 15.
(103) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(104) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(105) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(106) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(107) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(108) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(109) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(110) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(111) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(112) OJ L 173, 30.6.1983, p. 1.
(113) OJ L 336, 29.12.1999, p. 21.
(114) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(115) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(116) With the exception of French-speaking Belgium, for which the Commission based its calculation on the figure of FRF 2336234 provided by Nathan as constituting its sales to Bricolux in1997.
(117) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(118) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(119) Nathan's comments of 27 October 1998 on the statement of objections, Annex 5, and Bricolux's comments of 30 October 1998, p. 9.
(120) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(121) Nathan's comments of 27 October 1998, Annex 1.
(122) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(123) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.
(124) Nathan's comments of 27 October 1998, Annex 5.
(125) OJ C 9, 14.1.1998, p. 3.
