Judgment — ECLI:EU:T:1999:100
Date: 1999-05-19
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Infringement committed "deliberately or through negligence";Determining the amount of the fine;Restriction of competition;Effect on trade between Member States
Procedure: Action for annulment - unfounded
Origin: Belgium

summary reports, drawn up at the end of each calendar year. By contrast, Article 2(1) and (2) provide that the authorised dealer or the manufacturer are to be informed immediately of the receipt of enquiries according to whether they emanate, respectively, from customers based in the contract territory or from those based outside it. The Court therefore finds that the passing-on obligations in Article 2, by providing for reciprocal notification of specific supply enquiries, are different in kind from the obligations to provide information laid down by Article 4. 59. Secondly, in Article 2(1), as worded, BASF's obligation to pass on to the authorised dealer all enquiries and all information that might promote the sale of the products in the contract territory comes immediately after a ban on his using other distribution channels in that territory. The passing-on obligation laid down in that clause, like the ban on using other distribution channels, thus belongs to the very substance of the exclusive right granted to Accinauto inasmuch as it is necessary for the effective exercise of that right. It follows that the interpretation contended for by the applicant, whereby the term 'pass on‘ simply means 'inform‘ the other party of the existence of the supply enquiries, both in Article 2(1) and Article 2(2), cannot be accepted. 60. Since the passing-on obligation imposed on the authorised dealer by Article 2(2) of the agreement covers only enquiries coming from outside the contract territory, it cannot be that the sole purpose of that clause is to enable the manufacturer to achieve better planing of its distribution organisation and its commercial strategy. The Commission has rightly pointed out that, if BASF wished to be informed as to the quantity and quality of the products concerned by the enquiries addressed to the applicant, the passing-on obligation should have applied equally to enquiriesfrom customers based in the contract territory. Such information could, moreover, have been supplied to BASF on a regular basis in a general manner or in the context of summary reports, as envisaged in Article 4 of the agreement, and not as a preliminary to each supply. Nor was it necessary for BASF to have advance notice of the destination of the goods ordered from the applicant in order to be in a position to allocate limited supply quantities uniformly between its authorised dealers. Its interest in obtaining information on export sales, particularly for the purpose of calculating the advertising subsidies which it granted to each dealer, could also have been satisfied by an obligation to draw up summary reports concerning those sales. Moreover, the applicant's interest in obtaining information on conditions in the markets for which the products were destined, even if that interest were relevant, could be satisfied by means other than prior notification of exports to the manufacturer. 61. The Court therefore finds that the applicant's explanations concerning the purpose of the passing-on obligation in Article 2(2) of the 1982 agreement are not such as to invalidate the Commission's contention that that clause contains a disguised prohibition on passive export sales without prior authorisation. 62. Moreover, the history of the agreement offers an explanation for the ambiguous terms in which the parties to the 1982 agreement drafted the clause complained of and for the disguised nature of the export ban which it contains. The parties were sufficiently aware, through their earlier experience, of the fact that an express restriction on the authorised dealer's freedom to carry out passive sales outside the contract territory is contrary to Community competition law. Nevertheless, they clearly expressed their intention to make enquiries from outside the contract territory subject to a specific system of recording which enabled the manufacturer to influence the dealer's conduct with respect to exports, should these prove to be necessary. 63. In those circumstances, it needs to be considered whether, as the Commission maintains, its interpretation of Article 2(2) of the 1982 agreement is further confirmed by the fact that the parties implemented an agreement with a view to preventing parallel imports of Glasurit products into the United Kingdom. Second part: implementation of the agreement — Arguments of the parties 64. In the applicant's submission, the implementation of the agreement at issue shows that the Commission misconstrued the expression 'pass on‘. It contends that the facts corroborate its own interpretation of that agreement. 65. When, in March 1986, IMF first made an enquiry of Accinauto, that company's managing director, Mr Dudouet, contacted BASF merely in order to obtain information as to the market situation and the availability of the products requested. Mr Dudouet rarely carried out exports and had deduced that the orders for the British market promised to be for large quantities. Since the products requested by IMF were products easily sold and, as was customary in the car repair market, the quantities had to be delivered at short notice, any delays in delivery could have caused serious problems to customers. Thus, contrary to what the Commission maintains, the applicant did not seek authorisation from BASF either to make deliveries to IMF or to fix the conditions applicable to those sales. 66. The applicant delivered the desired quantities to IMF and business relations between the two companies subsequently developed successfully. Until 1990, orders from IMF increased consistently, as did the discounts granted to it by the applicant. 67. As from June 1989, the sales by the applicant to IMF were invoiced in the name of Technipaint solely in order to separate the exports from the Belgian operations. That separation became possible in 1989, after the entry into service of a new computer system. It enabled the applicant to increase the transparency of its operations and to limit the payment of bonuses due to its collaborators. BASF was also keen on the separate registration of operations, since it contributed to the advertising costs concerning sales in the contract territory. 68. Contrary to what is stated in points 75 and 76 of the preamble to the contested decision, the applicant did not cease to supply IMF at the end of May 1990 but only in December 1990. The first order which reached the applicant since the delivery at the end of May 1990 was dated 4 December 1990. IMF did not place any new orders between those two dates, despite the reference to a future order in the letter from IMF's lawyers to the applicant of 3 July 1990. 69. The applicant decided to cease supplying IMF independently because of their company's unreliability and the threatening attitude which it had adopted. Since August 1989, IMF had no longer paid invoices on time. In a conversation with the applicant on 5 June 1990, IMF had insisted on obtaining extra supplies, even though the availability of a large number of Glasurit products was affected by bottlenecks. It had threatened to lodge a complaint against the applicant for infringement of Community competition rules and to establish a subsidiary in Belgium for the purpose of carrying out direct exports to the United Kingdom. 70. The applicant first informed BASF by letter of 7 February 1991, with which it enclosed a copy of the letter it had sent to IMF on 19 December 1990, that it had finally broken off business relations with IMF. 71. The applicant accuses the Commission of having failed to take account of the supply difficulties which it had mentioned, and of which, it maintains, it produced convincing evidence during the administrative procedure. For various reasons, there were major bottlenecks in BASF's supply capacities during the period in question, and the main product ranges, especially the most used basic colours, were affected. 72. BASF had established an information network between itself and its distributors, including the applicant, in order to ensure regular supply to the European market in a time of shortage. In order to fulfil its delivery obligations towards customers for Glasurit products, it wished to be aware of product flows and the sales situation in the various national markets. 73. The applicant also maintains that it was under a duty to supply customers in its contract territory as best it could. Having been contacted by IMF, it was quite normal that it should first examine delivery possibilities with BASF in order to avoid committing a breach of its contractual obligations. It was not allowed to use slender resources to accept new orders or make deliveries outside its territory. 74. The lawfulness of the conduct it pursued finds recognition, it submits, in the recitals in the preamble to Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive distribution agreements (OJ 1983 L 173, p. 1), just as it had done so in Commission Regulation No 67/67/EEC of 22 March 1967 on the application of Article 85(3) of the Treaty to certain categories of exclusive dealing agreements (OJ, English Special Edition 1967, p. 10). The parties to an exclusive distribution agreement may thus include clauses allowing the manufacturer to verify whether the main purpose of such an agreement, namely to operate intensively in the contract territory, is being respected by the distributor. 75. Accinauto further observes that, according to the statements of the complainant reproduced in point 22 of the preamble to the contested decision, BASF gave its consent in March 1986 to Accinauto supplying IMF, provided that the discount was no more than 19% of Accinauto's published trade price. Those statements are contradicted by the fact that, at the time, IMF accepted an 8% discount and that during the whole of 1986 no discount of 19% was granted to it by Accinauto. It would be contrary to all business experience for IMF to have contented itself with an 8% discount if M. Dudouet had disclosed the prospect of BASF's agreeing to the grant of a discount of up to 19% of the published trade price. In Accinauto's submission, that is a convincing indication that the complainant was equally inaccurate in relaying the remainder of the telephone conversation between Accinauto and BASF. 76. It is also clear from an internal note signed by Mr Augustin dated 5 June 1990 that BASF was informed of all supplies made by Accinauto to IMF in 1989. Accinauto therefore challenges the Commission's assumption that it intended to conceal its exports to the United Kingdom by invoicing in the name of Technipaint. 77. The Commission reaffirms its conclusion that the parties' implementation of the agreement, especially after March 1986, confirms that Article 2(2) thereof did in fact reserve for the manufacturer a right to approve passive sales. It submits that the applicant's explanations are unconvincing, and not capable of invalidating the legal assessment of the conduct noted in the contested decision. 78. The Commission submits that the documents before the Court contradict the version of the facts presented by the applicant. The internal note of 5 June 1990, mentioned in points 43 and 52 of the preamble to the contested decision, showed that BASF had granted Mr Dudouet 'special authorisation‘ to supply IMF, following the first order which the latter placed with Accinauto in March 1986. Other documents show that the halting of supplies to IMF did indeed take place at the instigation of BASF, and that, as from June 1989, the applicant invoiced those sales through the intermediary of Technipaint in order to conceal them. Finally, following a tightening in control by BASF, Accinauto terminated the exports in May 1990. 79. According to the Commission, the supply difficulties pleaded by the applicant cannot explain the conduct of the parties to the agreement, given that the shortage was confined to the period between 1988 and the end of 1990. Moreover, the correspondence exchanged between BASF and its dealers concerning parallel imports to the United Kingdom show no trace of any concern that supply to other national markets might be insufficient. The withdrawal of the special authorisation granted to the applicant is to be explained not by difficulties in supply experienced by BASF but by the fact that parallel imports were damaging to BASF C & I and resulted in a reduction in prices charged in the United Kingdom. 80. The conclusions drawn by the applicant from an alleged error by the complainant concerning the maximum discount of 19% granted by BASF are, the Commission submits, exaggerated. In the first place, when Accinauto replied to a request for information, it confirmed having granted a 19% discount to IMF. It is therefore for the applicant to explain the contradiction between its reply to the Commission and its current statements. Moreover, as regards the maximum discount authorised by the manufacturer, it was normal for the applicant not to grant it to IMF from the outset, especially since the orders initially placed by that company were for small quantities. The applicant's objections concerning the accuracy of the complainant's statements are, the Commission submits, unfounded. The question whether and when the maximum discount of 19% was granted to IMF in full does not affect the fact that, in March 1986, the applicant obtained authorisation from BASF to supply the complainant and for the discounts to be applied. 81. The note made by a BASF employee, dated 5 June 1990, is not such as to establish that the manufacturer was informed in 1989 of the supplies effected through the intermediary of Technipaint. In the Commission's submission, the internal memoranda referred to in points 47 and 50 of the preamble to the decision show that the applicant pursued its deliveries to IMF without the knowledge or authorisation of BASF. 82. The applicant is confusing cause and effect in its explanation of the reasons which led it to terminate supplies to IMF. The threat to bring a complaint which was made in the conversation of 5 June 1990 followed the statements of Mr Dudouet to IMF at the end of May 1990 to the effect that he had been put under pressure by BASF and was therefore no longer able to supply Glasurit products. The refusal to pay the account for May did not occur until July, following the dispute which arose between IMF and Accinauto. The Commission therefore reaffirms its findings concerning the date and circumstances of the halting of deliveries to IMF. It further maintains that Accinauto has not demonstrated that IMF demanded larger deliveries or more advantageous terms. Findings of the Court 83. It should be observed, as a preliminary point, that the infringement of the competition rules which the Commission, in the contested decision, found to exist concerns the conclusion by the parties of an agreement designed to prevent parallel imports of Glasurit products into the United Kingdom. The Court's examination of the implementation of the 1982 agreement is therefore concerned solely with confirming whether the Commission's interpretation of Article 2(2) thereof is well founded. 84. In that respect, the applicant denies the existence of a causal link between the facts noted in the decision and the implementation of an alleged agreement contrary to Article 81(1) EC. In its submission, the conduct of the parties to the 1982 agreement is explained by the difficulties in supply experienced by BASF during the period in question and by business decisions taken independently by Accinauto. 85. However, the Commission has correctly pointed out that the bottlenecks affected BASF deliveries only between 1988 and 1990, whereas the agreement complained of was in force from 1982 until 1991. 86. Nor can those difficulties substantiate the explanation given by the applicant for its contacts with BASF in March 1986, before the first delivery to IMF took place; there was no objective reason why Mr Dudouet needed to enquire first as to the availability of the products ordered. 87. Moreover, business relations between Accinauto and IMF intensified in 1989, notwithstanding the serious difficulties experienced by BASF during the whole of that year. At the time when those relations were broken off, in June 1990, the shortage situation pleaded by the applicant was already largely alleviated. 88. It is, moreover, apparent from BASF's internal memoranda and from the correspondence which it received from BASF C & I and Accinauto that the problem of parallel imports arose in the context of their effects on the business of the British subsidiary and not in the context of difficulties in delivery which might affect the supply of Belgian and Luxembourg customers. 89. It follows that the difficulties affecting BASF's deliveries did not have a substantial impact in this case on the implementation of the 1982 agreement. That being so, Accinauto's arguments as to the lawfulness of its conduct in a situation of shortage, particularly in the light of the recitals in the preamble to Regulation No 1983/83 of 22 June 1983, are irrelevant for the purposes of the examination of this case. 90. The Court finds that, according to an internal memorandum of BASF dated 5 June 1990, Accinauto had obtained 'special authorisation‘ to supply IMF: 'The owner of [IMF], Derby, is insisting on further car paint supplies from Accinauto (1989 approx. 10 tonnes). For this customer, Mr Dudouet had at the time obtained a special supply authorisation from Mr Kunath. At that time, authorisation was given for a limited amount of supplies from Brussels. Reason: no increase in volume by other dealers in Belgium. If consent is not given for a further supply, we are threatened with court proceedings. [...] Mr Dudouet is waiting to hear what the approach should be in future.‘ 91. In a letter of 7 June 1989, addressed to BASF, Mr Dudouet refers to the context in which that authorisation had been granted and maintained up to that date: 'Three or four years ago now, Glasurit decided, in view of the large quantities of parallel imports into the United Kingdom, to place with our help, on all products sold coming from our stocks, a special marking for each customer, to enable the origin of the consignment to be determined easily. [...] In view of this trade, we agreed with Glasurit to try to channel and normalise these purchases in order to follow the quantities purchased by our customers regardless of purchase outside the sales territory. [...] We would draw your attention to the fact that, if we dismantle this network, we can no longer guarantee to you that our 70 dealers or large body repair businesses will not be tempted or asked to do business with Great Britain, which would considerably disrupt our internal market.‘ 92. Those particularly clear documents show that, contrary to what it claims, Accinauto did not act independently in its business dealings with IMF. The closeness of the control exercised by BASF on Accinauto's exports is confirmed in another internal memorandum, dated June 1990: 'Herewith Accinauto's reply to our question as to how much material [Glasurit] is going from Belgium to Great Britain. We must assume that Dudouet is telling the truth. He is well aware that he depends on us and will not wish to take any risks.‘ 93. The second part of the plea, alleging error by the Commission in its assessment of the implementation of the 1982 agreement, must therefore be dismissed. Third part: effects of the agreement on competition and on trade between Member States — Arguments of the parties 94. The applicant complains that the Commission took insufficient account of the particularities of the British market in vehicle refinishing paints. 95. It states that parallel imports of Glasurit products developed because of the price difference in the vehicle refinishing paints market between the United Kingdom and other Community countries. That difference was due mainly to higher marketing costs in the United Kingdom, but also to the price control system operating in Belgium since the early 1980s. That system had been decided upon by the Belgian State in order to prevent an increase in retail prices. 96. Nevertheless, the Commission was mistaken, according to the applicant, in its view that the position of Glasurit products on the British market and the price differences between Belgium and the United Kingdom were such as to encourage substantial parallel imports, which were prevented by the 1982 agreement. 97. The applicant maintains, first, that the prices to be taken into account for competition purposes are the distributor's net selling prices, representing the relevant purchase price. The differences between the prices charged in Belgium and those charged in the United Kingdom diminish significantly if the net selling prices charged are considered. Moreover, there is, in addition to actual demand fully satisfied, no potential demand. The complainant companies declared themselves satisfied with their business relations with Accinauto and, by reason of the favourable terms granted to it, IMF was able to supply Glasurit products not only to Calbrook Cars Ltd but also to other British businesses. 98. Apart from the orders from IMF, the applicant received no other orders after 1986. It could not have refused non-existent orders, at the instigation of BASF or otherwise. It therefore challenges the validity of the Commission's finding that the objective scope for supplies by Accinauto was by no means exhausted by the quantities actually supplied to IMF and Calbrook Cars Ltd. Nor does the applicant understand how the existence in the agreement of a clause which, on the Commission's interpretation, does not prohibit passive exports but merely provides that they be authorised by the manufacturer, could have prevented those exports, when there was no known case in which Accinauto requested an authorisation and did not obtain it. The company concludes that the exclusive distribution agreement has in any event not prevented parallel imports, and has had no repercussions whatsoever on the use made by Accinauto of objective opportunities to supply. 99. Nor, in the applicant's submission, did the 1982 agreement affect competition and trade between Member States in any other way. Parallel importers were perfectly well informed of the sources of supply existing in the various Community countries and made common purchases from distributors charging the most advantageous prices for each line of products. That is confirmed by the fact that IMF obtained certain products from Accinauto on behalf of Calbrook Cars Ltd, while the latter obtained other products on better terms in the Netherlands and Germany. Moreover, the supply and demand situation cannot be viewed statically. In the applicant's submission, it was constantly undergoing corrections, which parallel importers took into account when deciding to place an order with a distributor. 100. The Commission replies that the documents discovered at BASF's premises disclose the price differences found in the contested decision, and that those differences were capable of encouraging parallel exports from Belgium to the United Kingdom. In any event, the applicant has itself acknowledged in its application that the differences between the prices charged in the United Kingdom and those charged in the other Member States were one of the causes of the parallel imports. 101. The Commission submits that it has demonstrated that the agreement in question was capable of having an appreciable effect on intra-Community trade, and points out that it is not required to prove that trade between Member States was in fact so affected (Case 19/77 Miller v Commission [1978] ECR 131, paragraph 15). It emphasises that it carried out the necessary investigations and in the contested decision presented its findings concerning the market position of the undertakings concerned, the size of their production and exports and their pricing policy. 102. The Commission also challenges the applicant's claim that there was no potential demand for Glasurit products on the British market during the period in question. Accinauto itself had stated that it expected an increase in the orders placed by IMF and Calbrook Cars Ltd, taking account of the fact that the capacity of the British market is far greater than that of the Belgian market. 103. Finally, the Commission argues, the obligation in Article 2(2) of the exclusive distribution agreement really constitutes a general ban on exports, coupled with a reservation for the possible granting of authorisation on a case-by-case basis by BASF. The applicant's objection that the agreement was incapable of producing effects in restraint of competition, since it imposed an obligation to obtain the manufacturer's authorisation for exports rather than prohibiting such sales, must be rejected. Findings of the Court 104. Article 81(1) EC prohibits all agreements between undertakings which have as their object or effect the restriction of competition within the common market, provided they are capable of affecting trade between Member States. It is settled case-law that, by its nature, a clause designed to prevent a buyer from reselling or exporting goods he has bought is liable to partition the markets and consequently to affect trade between Member States (Miller, paragraph 7; Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, known as the 'Woodpulp‘ cases, paragraph 176). When it is evident that the sales of at least one of the parties to an anti-competitive agreement constitute a not inconsiderable proportion of the relevant market, Article 81(1) EC should be applied (Miller, paragraph 10; Parker Pen, paragraph 44). 105. In this case, the applicant has disputed neither the Commission's definition of the relevant market, namely the British market in vehicle refinishing products, nor the fact that BASF's share of that market in 1991 was 16%, including 12% for Glasurit products. Its criticisms are limited to the volumes of parallel imports which the Commission took into account and the latter's statements concerning the existence of potential demand that might be satisfied by the applicant. Bearing in mind the position which BASF held on the relevant market and the fact, confirmed by the applicant itself, that Glasurit prices on that market between 1986 and 1991 were, on average, higher than those charged on the markets of other Member States, particularly Belgium, the Commission was right in concluding that the agreement in question was capable of affecting intra-Community trade. 106. In those circumstances, the Court finds that that agreement, by virtue of its object, constitutes a restriction on competition prohibited by Article 81(1) EC, without its being necessary to consider whether, as claimed by the applicant, it had no appreciable effects on the market concerned (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case T-43/92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 127). 107. The applicant's other objections to the Commission's finding of infringement of Article 81(1) are therefore inoperative, since, even if upheld, they cannot lead to the conclusion that an agreement having the object and scope of the one in point in that case does not infringe the Community competition rules. Fourth part: date on which the infringement ceased — Arguments of the parties 108. The applicant argues that, even if there were an infringement of the competition rules, it ended not later than the end of June 1990. The Commission should have held that BASF's letter to Accinauto of 21 June 1990 clearly indicated to the latter that it was free to take its own sales decisions. In any event, the Commission itself acknowledged that BASF's letter to IMF's lawyers of 22 June 1990, a copy of which was sent to Accinauto, was sufficiently comprehensible and clear in that respect. 109. The Commission reiterates its contention that the agreement in restraint of competition did not end until the parties removed the offending clause. In the circumstances, Accinauto could not interpret the copy of the letter sent to the complainant's lawyers in June 1990 as meaning that BASF waived the right to approve exports which it had reserved for itself in Article 2(2) of the 1982 agreement. The aim of that letter was merely to forestall possible claims by IMF. Findings of the Court 110. Since the infringement found by the contested decision was the conclusion of, and participation by the parties in, an exclusive distribution agreement in which one of the clauses pursued an object contrary to Article 81(1) EC, the Commission was right in holding that that infringement did not end until the two parties removed the clause in question. Under the case-law, the fact that a clause whose object is to restrict competition has not been implemented by the contracting parties is not sufficient to remove it from the ambit of the prohibition laid down in Article 81(1) EC (Miller, paragraph 7; Ahlström Osakeyhtiö, paragraph 175). In this case, the letters from BASF relied on by the applicant do not establish that the parties genuinely intended to renounce the offending clause. Indeed, as the Commission found, the clearer terms used in the letter of 22 June 1990 were really aimed at weakening the accusations of anti-competitive conduct which had been addressed to the parties by the complainant IMF. Fifth part: determination of the amount of the fine — Arguments of the parties 111. The applicant accuses the Commission of misusing its discretion by failing to take account, when determining the amount of the fine, of the mildness and short duration of the alleged infringement, the difficult economic situation of the applicant and the absence of unlawful intent. 112. Accinauto contends that the seriousness of the infringement is to be measured in relation to the effects which the allegedly anti-competitive agreement had on trade. In this case, the agreement had no effect, not having been implemented by the parties. Even if it had been applied, the agreement would not have affected the flow of parallel imports into the United Kingdom from Belgium. There was only one refusal to supply, in December 1990, which was determined not by the agreement but by an independent decision of the applicant. Moreover, the volume of parallel imports affected by the 1982 agreement was insignificant in comparison with the total sales of Glasurit products in the United Kingdom. 113. The Commission was wrong in taking the duration of the infringement to be the whole of the period of validity of the agreement, between its conclusion on 8 October 1982 and the entry into force of the new agreement on 1 January 1992. In the first place, the Commission itself acknowledged that the effects of the agreement started to be felt only as from 1986. Moreover, Accinauto refused only one delivery to IMF, and the alleged infringement ended not later than June 1990, when BASF clearly informed the complainant and Accinauto that the latter was free to carry out passive sales in the Member States of the Community. The applicant therefore contends that to take the whole period of validity of the agreement into account is unjust, and seriously infringes the principle of proportionality. 114. The applicant further emphasises that the lawyers consulted at the time the agreement was concluded considered that the clause in question complied with Community law. The parties and their employees were thus not aware, during the period of validity of that agreement, that they were committing an infringement of the competition rules of the Treaty. 115. The Commission argues that prohibitions on exports are by their nature serious infringements of competition, since they seek artificially to maintain price differences between the markets of Member States and jeopardise the freedom of intra-Community trade (Joined Cases 100/80, 101/80, 102/80 and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraph 107). The market share of the parallel imports concerned by the infringement are therefore immaterial in determining its seriousness. The Commission further maintains that it has already refuted the applicant's claims that the 1982 agreement had no economic effects on parallel imports from Belgium to the United Kingdom, or any influence on the decisions taken by Accinauto. 116. The infringement began on the date on which the exclusive distribution agreement stipulating a right of approval for the manufacturer was concluded, and continued during the whole period of validity of that agreement (Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ v Commission [1983] ECR 3369, paragraph 59). The mere silence of Accinauto which followed BASF's letters of 21 and 22 June 1990 could not validly have varied the 1982 agreement. Under Article 12(2) of that agreement, variations were valid only if made in writing. 117. The Commission challenges the applicant's argument that there was no deliberate intention to restrict competition because the parties were unaware that they were infringing Community law. Any error of law that may have been committed by BASF's lawyers did nothing to alter the fact that the intention of BASF was to impose a passing-on obligation on Accinauto and thereby to control parallel exports to the United Kingdom. Findings of the Court 118. Under Article 15(2) of Regulation No 17, the Commission may by decision impose on undertakings which have intentionally or negligently infringed Article 81(1) EC fines of between ECU 1 000 and 1 000 000 or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement. Within those limits, the amount of the fine is determined by reference to the seriousness of the infringement and its duration (Musique Diffusion Française, paragraph 118; Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, paragraph 175). 119. For an infringement of the competition rules of the Treaty to be considered to have been committed intentionally, it is not necessary for the undertaking to have been aware that it was infringing a prohibition laid down by those rules; it is sufficient that it was aware that the object of the offending conduct was to restrict competition (IAZ, paragraph 45; Case T-66/92 Herlitz v Commission [1994] ECR II-531, paragraph 45). As the Court has already found, the applicant cannot have been unaware that the object of the offending clause in the 1982 agreement was to restrict parallel imports, and, as a result, by partitioning the various national markets, to thwart the very objective of realising the single market which the Treaty seeks to attain. The advice of a lawyer, which the applicant pleads in its aid, cannot exonerate it in that respect (Miller, paragraph 18). 120. The Court finds in this case that the Commission complied with the ceiling laid down by Regulation No 17, which refers to the overall turnover of the undertaking concerned (Musique Diffusion Française, paragraph 119; Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 247). The amount of the fine thus represents only 0.05% of Accinauto's overall turnover in 1991, which amounted to around ECU 18 450 000 (BEF 738 000 000; see paragraph 1 above). 121. It is settled case-law that the amount of the fine must be fixed at a level which takes account of the circumstances and the gravity of the infringement, the last-mentioned matter to be appraised by taking account of the nature of the restrictions on competition (Parker Pen, paragraph 92; Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 246). 122. In the contested decision, the Commission was right in finding that the infringement was particularly serious, having regard, in particular, to the nature of the restriction on competition in question and BASF's strong position on the market for vehicle refinishing paints in Europe. 123. The Commission's assessment of the duration of the infringement is, furthermore, in no way erroneous, given that that infringement has been characterised as being the conclusion by the parties of an agreement containing a clause pursuing an object contrary to Article 81(1) EC. Even if the Court were unable to find that such a clause was implemented, the fact remains that its mere existence was capable of creating a 'visual and psychological‘ effect which contributed to a partitioning of the market (Miller, paragraph 7; Herlitz, paragraph 40). The infringement which began when the 1982 agreement was concluded did not therefore end until the offending clause was effectively removed. 124. Finally, it should be noted that the Commission accepted as a mitigating circumstance the fact that the parties terminated the infringement on 1 January 1992, before the statement of objections was sent to them on 12 May 1993. It also took account of the fact that Accinauto is economically dependent on BASF, and that the latter took advantage of that dependence in order to impose its economic interests. 125. In those circumstances, this Court finds that, in setting the fine on the applicant at ECU 10 000, the Commission did not exceed the bounds of the discretion which it enjoys in determining the amount of fines. 126. In the light of all the foregoing considerations, the applicant's claims must be dismissed in their entirety, without its being necessary to examine its claim that the Commission should pay it interest at 9.5% on the amount of the fine. Costs 127. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful and the Commission has applied for costs, the applicant must be ordered to pay the costs. On those grounds, THE COURT OF FIRST INSTANCE (First Chamber) hereby: 1. Dismisses the application; 2. Orders the applicant to pay the costs. Vesterdorf Moura Ramos Mengozzi Delivered in open court in Luxembourg on 19 May 1999. H. Jung B. Vesterdorf Registrar President 1: Language of the case: German. ECR