Article 86
(60) The Commission considers that, at the time of the acquisition of the Liquipak group and the assignment of the licence to it, Tetra occupied a dominant position in the EEC market for the production of machines incorporating technology for sterilizing cartons, used for filling under aseptic conditions board cartons with UHT-treated liquids, including in particular milk. Tetra abused its dominant position by the acquisition of this exclusive licence which hqad the effect of strengthening its already dominant position, further weakening existing competition and rendering even more difficult the entry of any new competition. This abuse lasted until Tetra renounced all claims to this exclusivity. Article 85 (1) (61) On the basis of the reasons set out above the Commission considers that the exclusivity provisions, as far as they have effects in the common market, contained in the licence between NRDC and Novus Corp. of 27 August 1981 fell within the scope of Article 85 (1) at least from the date of the agreement to assign this licence to Tetra until Tetra renounced all claims to this exclusivity. Had not Tetra renounced all claims to this exclusivity the Commission would, in accordance with Article 9 of Regulation (EEC) No 2349/84, have withdrawn the benefit of the exemption provided under this Regulation, because the conditions necessary for an exemption under Article 85 (3) were not fulfilled. VI. Termination of infringement and reservation of right to take further action (62) Although Tetra has renounced all exclusivity to the licence in question and BTG has announced that it is negotiating with both Tetra and Elopak to grant non-exclusive licences, the Commission considers for the reasons set out below that it has an obligation to take a decision in this case (1). 1. Tetra committed a serious abuse of Article 86 and in conjunction with BTG infringed Article 85 (1) in a way that could not have been exempted under Article 85 (3). These contraventions of the rules of competition were only terminated when Tetra changed its attitude following the intervention of the Commission during the course of its official investigation. 2. Were it not for the fact that the contraventions of the rules of competition were relatively novel, the Commission would have sought to impose a fine on Tetra for its behaviour. The Commission feels that a formal decision will clarify its position on this topic and formally warn not only Tetra of its attitude but also other firms who may undertake similar lines of conduct. 3. Even though willing to renounce exclusivity Tetra still denies that it holds a dominant position or has committed any abuse or has infringed Article 85 (1) in any way that is not exemptable. In addition, BTG has stated it would still prefer to grant an exclusive licence. A decision is therefore necessary to ensure that the exclusivity is not reinvoked by the parties and also to indicate the clear position of the Commission towards other similar behaviour. 4. Furthermore, the Commission cannot overlook the legitimate interest of Elopak which made an application to the Commission pursuant to Article 3 of Regulation No 17. Other potential competitors also have an interest in the legal security which might result from such a public declaration by the Commission. (63) In addition, the Commission reserves the right to continue its investigations into Tetra's wider commercal behaviour on the markets for milk cartons (both fresh and aseptic) and packaging machines (both fresh and aseptic) in order to determine whether Tetra has committed any further infrigements of either Article 85 or Article 86, HAS ADOPTED THIS DECISION: