26. 1. 90 Official Journal of the European Communities No L 21/71 COMMISSION COMMISSION DECISION of 13 December 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/32.026 — Bayo-n-ox) (Only the German text is authentic) (90/38/EEC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation No 17 of 6 February 1962 First Regulation implementing Articles 85 and 86 of the Treaty ('), as last amended by the Act of Accession of Spain and Portugal, and in particular Article 3 (1) thereof, Having regard to the Commission’s decision of 22 November 1988 to initiate proceedings upon its own initiative, Having given the parties the opportunity of being heard on the matters to which the Commission has taken objec- tion, in accordance with Article 19 (1) of Regulation No 17 "in conjunction with Commission Regulation No 99/63/EEC of 2§ July 1963 on the hearings provided for in Articles 19 (1) and (2) of Couneil Regulation No 17 (3), Having consulted the Advisory Committee on Restrictive Practices and Dominant Positions, Whereas : I. THE FACTS 1. The subject of the proceeding (1) - This proceeding relates to agreements. that were in force from 10 July 1986 to 13 November 1989 between Bayer AG, Leverkusen, and its customers - specified in the Annex in respect of the product ‘Bayo-n-ox Premix 10 %’; under which these custo- mers were required to use the product only to cover their own requirements in their own works. () OJ No 13, 21. 2. 1962, p. 204/62. () OJ No 127, 20. 8. 1963, p. 2268/63. @ 3 @ (%) (6 @ - 2. The undertakings. Bayer AG is a chemicals undertaking with a worl- dwide group turnover of DM 40,5 billion (1988) and holdings in a large numer of undertakings. The customers of Bayer AG which purchase from it the product ‘Bayo-n-ox Premix 10 %/, are underta- kings operating in the feedingstuffs industry which as a rule process the product with other active substances or - additives into. either premixes-or finished feeds. 3. The product The product ‘Bayo-n-ox Premix 10 %’ (hereinafter referred to as ‘Bayo-n-ox’) consists in particular -of the active substance ‘Olaquindox’ (10 %), -with limestone grit (calcium carbonate) as the carrier. It was introduced on to the market in 1976 under the protected trade mark ‘Bayo-n-ox’. Bayo-n-ox is a growth promoter. The active substance contained in it, when used as an additive in feedingstuffs, leads to an improvement in feed conversion and in daily weight gain.- Within the European Community, the ingredient may be used for pigs up to four months old. Feedingstuff additives with the active substance ‘Carbodox’” (manufactured by the firm - Pfizer), which like ‘Olaquindox’- belongs to the ‘Quinoxa- line’ group, and feedingstuff antibiotics produced’ by a fermentation process are other growth promo- ters used for pigs. , In several Member States, Bayo-n-ox was and is: protected: by industrial property rights. The patents - relate to ‘the active substance, the manufacturing process and/or the final product. In 1985, patent protection expired in respect of a non-dust-free formulation in Germany and Denmark. In France, the Netherlands and Belgium, patent protection continued to apply up to 1988.