Judgment — ECLI:EU:T:1999:99
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;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded
Origin: Germany

summary list did not sufficiently indicate the 
nature of the documents which, in the Commission's assessment alone, contained 
business secrets of the complainants or constituted internal Commission 
documents. Moreover, the numbering of the copies sent was either non-existent 
or illegible, thus preventing the applicant from checking whether they were 
exhaustive and in conformity with the original documents. 
37 The introduction into the terms of reference of the hearing officer of a new 
provision enabling undertakings to ensure through him that copies sent to them 
conformed with the original documents proves, in the applicant's submission, 
that the Commission recognised the legal uncertainty arising from its practice 
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concerning access to the file. The document of the Paris International Chamber of 
Commerce, annexed to the reply, showed that that opinion was shared in 
European business circles. 
38 By rejecting the applicant's request that its lawyer be permitted to consult the 
original file and take copies of material not sent to it, the Commission had failed 
in this case to comply with its obligations under the case-law of the Court of First 
Instance (Case T-7/89 Hercules Chemicals ν Commission [1991] ECR 11-1711, 
paragraph 54; Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries 
CBR and Others ν Commission [1992] ECR II-2667, paragraph 38; Case 
T-65/89 BPB Industries and British Gypsum ν Commission [1993] ECR II-389, 
paragraph 30; Case T-30/91 Solvay ν Commission [1995] ECR 11-1775, 
paragraphs 59 and 81). 
39 The applicant maintains that, amongst the documents sent to it, none could be 
regarded as tending to exonerate it. It was thus probable that the Commission 
knowingly omitted to bring to the applicant's knowledge essential parts of the file 
which were important for its defence. In that context, the applicant raises the 
possibility that some of the documents which were not sent might show that 
parallel imports of Glasurit products were not in any way prevented in the years 
1986 to 1991. 
40 The Commission contends that in this case its application of the rules on access to 
the file which result from the case-law of the Court of Justice and the Court of 
First Instance was correct in every respect (Hercules, paragraph 54; Cimenteries 
CBR, paragraph 41; BPB Industries, paragraph 31; and, on appeal, Case 
C-310/93 Ρ BPB Industries and British Gypsum ν Commission [1995] ECR 
I-865). In its submission, the applicant cannot deduce from that case-law that it 
has a right to consult the original file in order to verify the exhaustiveness and the 
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BASF V COMMISSION 
conformity of the copies and to satisfy itself that all incriminating and 
exonerating documents have been sent to it. 
41 The sending of the documents was not subordinate to the question whether they 
were incriminating or exonerating in nature. The Commission states that it sent 
the applicant a complete summary of all the documents on the file and complete 
copies thereof, save only for those which were confidential. Since that summary 
specified with sufficient clarity and precision all the documents which were not 
accessible to the applicant, or were only partially accessible to it, this was not a 
complete refusal of disclosure of the kind of which the Commission was accused 
in Solvay (paragraphs 94 and 95) and in Case T-36/91 ICI v Commission [1995] 
ECR II-1847, paragraphs 100 and 104. 
42 The Commission emphasises that the applicant has failed to request access to 
specific documents, mentioned in the summary, which were not sent to it on the 
ground that they contained business secrets of Accinauto and certain other 
undertakings. Had the applicant made such a request, the Commission would 
have been able to consult the undertakings concerned and decide how far it was 
able to make the relevant documents accessible without infringing the right of 
those undertakings to the protection of their business secrets. 
43 Nor did the applicant make use of the opportunity, which had been mentioned to 
it by letter of 15 September 1993, of applying to the hearing officer for 
confirmation that the summary was exhaustive. 
44 Therefore, the Commission submits, the applicant's argument that documents 
relevant to its defence were concealed from it rests on mere speculation and 
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conjecture. The applicant has put forward nothing to justify the conclusion that 
such documents actually existed. 
— Findings of the Court 
45 Under the case-law, the procedure governing access to the file in competition 
cases is designed to enable the addressees of a statement of objections to examine 
evidence in the Commission's files so that they are in a position effectively to 
express their views on the conclusions reached by the Commission in that 
statement on the basis of that evidence. Access to the file is thus one of the 
procedural guarantees intended to protect the rights of the defence and to ensure, 
in particular, that the right to be heard provided for in Article 19(1) and (2) of 
Regulation No 17 can be exercised effectively. The Commission has an obligation 
to make available to the undertakings involved in Article 85(1) proceedings all 
documents, whether in their favour or otherwise, which it has obtained during 
the course of the investigation, save where the business secrets of other 
undertakings, the internal documents of the Commission or other confidential 
information are involved {Hercules, paragraph 54; Cimenteries CBR, paragraphs 
38 and 41; BPB Industries, paragraphs 29 and 30; Solvay, paragraph 59). 
46 Having regard to the general principle of equality of arms, which presupposes 
that in a competition case the knowledge which the undertaking concerned has of 
the file used in the proceeding is the same as that of the Commission, the 
Commission is not entitled to decide on its own whether the documents seized in 
the investigation of the matter are capable of exonerating the undertaking 
concerned. At the least, therefore, the Commission must draw up a sufficiently 
detailed list of the documents which are not annexed to the statement of 
objections to enable the undertaking to which that statement is addressed to 
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BASF V COMMISSION 
request access to specific documents likely to be useful in its defence (Solvay, 
paragraphs 83 and 101). 
47 In this case, the Commission sent the applicant a list of the documents comprising 
the case-file, together with 19 appendices and three files with annexes containing 
copies of documents accessible to the applicant. 
48 An examination of the list summarising the 1336 pages of the Commission's file 
shows that documents or groups of documents were classified in 12 categories 
established by reference to the nature of their content and six categories 
determined in relation to their degree of confidentiality. Documents classified in 
category F were inaccessible to the applicant in their entirety. A single document, 
classified in category D, was partially accessible to it. The list showed the number 
of pages of each document and the respective dates on which they were drawn up, 
save, as regards documents not transmitted, for those constituting pages 97, 103 
to 105, 108 to 110, 167, 171, 622 to 626, 690 and 897 to 899 of the file. 
49 After receiving that list, which was sent to it with the statement of objections, the 
applicant did not make any specific request to the Commission for access to one 
or more of the documents not supplied to it. In its letter of 16 June 1993, it 
merely requested access to the original and complete file established by the 
Commission, claiming that it had received copies of only a part of the documents 
collected in the course of the investigation and that, bearing in mind a lack of 
legibility in the pagination, it was having difficulty in verifying the exhaustiveness 
and conformity of the copies in relation to the original documents. 
50 In those circumstances, the Court finds that the Commission's refusal to authorise 
the applicant's lawyer to consult the original file arose in a different context from 
that in Solvay and ICI. Unlike the applicants in those cases, the applicant had a 
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list prepared by the Commission's staff of all the documents on the file, including 
those which were not sent to it. That list constituted a sufficient basis for the 
applicant to take cognisance of the existence of the documents in question and, 
where appropriate, for it to object to the fact that the Commission had not sent it 
documents of a certain kind, in particular annexes to the complaint or documents 
found on Accinauto's premises, which might have been capable of being used in 
its defence. 
51 Since the applicant made no request specifying the origin or categories of unsent 
documents to which it wished to have access, it did not put the Commission in a 
position to give it a reply in conformity with the methods whereby the institution 
is required to give the undertaking concerned access to documents containing 
business secrets of other undertakings, whether involved in the proceeding or not. 
In the circumstances of this case, the Court cannot criticise the Commission for 
failing to use one of the methods specified in paragraphs 92 and 93 of the Solvay 
judgment, namely the preparation of non-confidential versions of all documents 
containing business secrets of the complainants and Accinauto or, in the event of 
difficulty, consultation with those undertakings in order to obtain documents 
from which sensitive information had been removed. 
52 The Commission could therefore legitimately rely on its duty of confidentiality as 
regards certain documents in rejecting the applicant's request for full access to the 
file. 
53 To the extent that BASF has not specified further before the Court which 
documents were wrongly considered to be confidential, or of which documents it 
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BASF V COMMISSION 
wished to obtain non-confidential versions, it has not made out its case for the 
measures of organisation of procedure which it has requested. 
54 The mere assertion by the applicant that the documents sent did not contain any 
in its favour cannot establish the actual existence of such documents amongst 
those which the Commission was entitled not to send to it on the ground of their 
confidentiality (BPB Industries, paragraph 33, and, on appeal, at paragraph 27). 
55 In those circumstances, the Court cannot grant the request for a measure of 
organisation of procedure in the form of an order directing the Commission to 
communicate the entire file to the applicant. 
56 Similarly, where an undertaking does not adduce any specific evidence to cast 
doubt upon the confidentiality of certain documents in the file, it is not the 
function of the Community judicature to look at each document not disclosed in 
order to verify the arguments relied on by the Commission for not having made 
them available (BPB Industries, on appeal, paragraph 30). 
57 Nor, therefore, can the Court grant the alternative request for a measure of 
organisation of procedure in the form of an order directing the Commission to 
send the entire file to the Court of First Instance. 
58 As regards the applicant's argument that the numbering of the copies sent to it 
was non-existent or illegible, thus preventing it from verifying that those copies 
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JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
were exhaustive and in conformity with the original documents, it must be 
acknowledged that a lack of care in the reproduction of the documents and the 
numbering of the pages may hinder comprehension of them. However, the defects 
in pagination referred to cannot be regarded in this case as adversely affecting the 
rights of the defence. The applicant is not alleging that the Commission refused to 
supply it with legible and correctly-numbered copies, and, contrary to what was 
suggested to it, it chose not to apply to the hearing officer for verification of the 
exhaustiveness of the copies in relation to the original file. 
59 The arguments based on the criticisms made of the Commission's procedures for 
access to the file, in particular by the Paris International Chamber of Commerce, 
and on the fact that those criticisms were recognised as well founded at the time 
of the adoption of Commission Decision 94/810/ECSC, EC of 12 December 1994 
on the terms of reference of hearing officers in competition procedures before the 
Commission (OJ 1994 L 330, p. 67) must also be rejected. Those arguments of a 
general nature are not capable of establishing the reality of an infringement of the 
rights of the defence, which must be examined in relation to the specific 
circumstances of each individual case (Solvay, paragraph 60). 
60 The first part of the plea must therefore be dismissed. 
Second part: absence of a translation into German of the whole of the minutes of 
the hearing 
— Arguments of the parties 
61 The applicant argues that, by failing to supply it with a full German version of the 
minutes of the hearing of 23 September 1993, the Commission infringed Article 3 
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BASF V COMMISSION 
of Council Regulation No 1 of 15 April 1958 determining the languages to be 
used by the European Economic Community (OJ, English Special Edition 1952-
1958, p. 59). That article provides that '[D]ocuments which an institution of the 
Community sends to a Member State or to a person subject to the jurisdiction of a 
Member State shall be drafted in the language of such State.' 
62 The applicant submits that the minutes of a hearing constitute a procedural 
document in the sense contemplated by Article 19(1) of Regulation No 17 and 
Article 2(1) of Commission Regulation No 99/63/EEC of 25 July 1963 on the 
hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, 
English Special Edition 1963-1964, p. 47). It maintains that, as an undertaking 
concerned, it is entitled to communication of the minutes in the language of the 
Member State to whose jurisdiction it is subject (Case 41/69 ACF Chemiefarma v 
Commission [1970] ECR 661, paragraphs 48 and 49). 
63 The fact that it had nothing in writing which contained a translation of the 
statements of other participants at the hearing who spoke in French or English, 
particularly those made by the representatives of Accinauto, the complainant 
undertakings and the Member States, prevented it from properly preparing its 
defence in the administrative procedure. Even though the Commission provided 
simultaneous interpretation of those statements during the hearing, translation of 
the whole of the minutes into German was essential for an understanding of the 
objections raised against the applicant, and in particular to enable it to clarify the 
facts referred to on that occasion with its employees who were not present at the 
hearing. Its rights of defence were therefore infringed. 
64 The Commission contends, on the contrary, that the minutes of the hearing do 
not constitute a 'document' within the meaning of Article 3 of Council 
Regulation No 1 of 15 April 1958. In cases concerning the application of the 
competition rules, that provision has been applied solely to statements of 
objections and decisions intervening during the administrative procedure. The 
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Commission argues that the minutes serve to record the remarks of the 
representatives of the various parties, and are sent to them solely so that they 
may verify that their own statements have been correctly recorded (Case T-77/92 
Parker Pen ν Commission [1994] ECR II-549, paragraphs 72 to 75). The minutes 
are not, it submits, a document drawn up for the benefit of the undertakings 
participating in the procedure. 
65 In any event, no procedural defect can be held to have occurred, since the 
applicant's statements at the hearing were recorded in German and it has not been 
alleged that the minutes contained substantial errors or omissions as far as it was 
concerned. 
— Findings of the Court 
66 Under Article 9(4) of Regulation No 99/63, 'the essential content of the 
statements made by each person heard shall be recorded in minutes which shall 
be read and approved by him'. 
67 It is common ground in this case that the applicant was able effectively to take 
note of the essential content of its own statements at the hearing of 23 September 
1993, which were recorded in the minutes in German, and that it is not alleging 
that the minutes contained substantial errors or omissions as far as it was 
concerned. 
68 Nor does the applicant deny that it had the opportunity to follow, with the aid of 
simultaneous interpretation, the statements of the other persons heard. 
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BASF V COMMISSION 
69 The applicant cannot rely on the absence of translation of those parts of the 
minutes which were drafted in a language other than that of its own Member 
State in order to establish an infringement of its rights of defence. In this case, the 
absence of translation is not liable to have harmful consequences capable of 
vitiating the administrative procedure (ACF Chemiefarma, paragraph 52, and 
Parker Pen, paragraph 74). 
70 Any difficulties which the applicant might have had in preparing its defence 
cannot alter that finding, since it was represented at the hearing and the 
Commission supplied it with documentation containing the other participants' 
statements in their original language. 
71 The second part of the plea must therefore be dismissed. It follows that the plea 
alleging infringement of essential procedural requirements must be dismissed in 
its entirety. 
The plea alleging infringement of Article 85(1) of the Treaty, in that the 
Commission wrongly concluded that the 1982 agreement infringed that provision 
72 The applicant essentially denies that the 1982 agreement constituted an 
agreement contrary to Article 85(1) of the Treaty, designed to prevent parallel 
imports of Glasurit products into the United Kingdom. The Commission 
committed errors of assessment, first, in its interpretation of Article 2(2) of that 
agreement; secondly, in its conclusion that the parties' implementation of the 
agreement confirmed its interpretation thereof; thirdly, in its analysis of the 
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effects of that agreement on competition and on trade between Member States; 
and, fourthly, as regards the date on which the alleged infringement of the 
competition rules ceased. 
First part: interpretation of Article 2(2) of the 1982 agreement 
— Arguments of the parties 
73 The applicant maintains that the expression 'pass on customer enquiries' in 
Article 2(2) of the 1982 agreement refers solely to the passing on of information 
allowing it the better to plan its distribution organisation and commercial 
strategy, and fulfil its obligation to supply the market on an equitable basis in the 
event of difficulties in supply. 
74 It maintains that 'pass on' means 'inform' in both Article 2(1) and Article 2(2). 
The article contained no obligation to pass on orders, given that it follows 
implicitly from the right of exclusive distribution in the contract territory 
conferred on Accinauto under Article 1. Moreover, Article 2 concerned only 
'enquiries' from customers, the sole object of which was to obtain information on 
the possibilities and conditions of delivery. Thus it did not apply to customers' 
orders. 
75 In the applicant's submission, there is nothing in Article 2(2) of the agreement 
which requires its consent for sales outside the contract territory of Accinauto. It 
is sufficient in that respect to compare the text of the clause in question with that 
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BASF V COMMISSION 
of a reservation of manufacturer's approval contained in a distribution agreement 
for the region of Nigeria, also concluded by the applicant in 1982. 
76 Under Article 4(1) and (2) of the 1982 agreement, Accinauto undertook to 
inform BASF regularly as to the general market situation and to draw up an 
annual sales report. However, since Article 4 applied only to information 
concerning business in the contract territory, information concerning enquiries 
addressed to it from outside that territory were covered only by Article 2(2) of the 
agreement. The applicant states that information on sales outside the contract 
territory were also of great interest to it, particularly in order to avoid those sales 
being taken into account in the turnover achieved by each distributor in its 
exclusive territory. The amount of certain subsidies granted by BASF to its 
distributors, contributions towards advertising costs for example, was deter­
mined by reference to the turnover they had achieved in their respective 
territories. 
77 The applicant further argues that the history of the agreement should be taken 
into account in order to understand the attention which the parties gave to the 
question of its compatibility with Community competition rules. The former 
exclusive sales contract concluded between Accinauto and the legal predecessor 
of BASF was notified to the Commission in 1969. Following objections raised by 
the Commission, the parties abandoned in 1970 a clause which stipulated that 
Accinauto was not authorised to export goods forming the subject-matter of the 
contract outside the contract territory. 
78 Bearing that precedent in mind, at the time of the negotiations which led to the 
1982 agreement, the applicant received an assurance from the head of its legal 
department that the new Article 2(2) complied with Community law. Since the 
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parties had no doubts as to the lawfulness of that clause, they did not consider it 
necessary to notify the 1982 agreement to the Commission. 
79 The Commission contends that the reasons put forward by the applicant to justify 
its interpretation of the passing-on obligation in Article 2(2) of the agreement are 
unconvincing. It reaffirms that that clause contains a disguised prohibition of 
passive export sales without prior authorisation, and not a simple obligation to 
pass on information. 
— Findings of the Court 
80 Article 2 of the 1982 agreement appears under the heading 'Exclusive distribu­
tion right and ban on competition'. The first subparagraph of Article 2(2) 
provides: 'The authorised dealer undertakes to pass on to [BASF] any customer 
enquiries coming from outside the contract territory and to refrain, outside the 
contract territory, from seeking customers or maintaining branches or supply 
depots for the distribution of the contract products.' 
81 It is common ground between the parties that the final part of the contractual 
clause in question contains a prohibition on active sales measures by the dealer 
outside the contract territory, a prohibition which complies with Community 
competition law. The dispute as to the interpretation of that clause thus concerns 
only the part dealing with passive sales to customers based outside the territory. 
82 In order to determine whether the parties to the 1982 agreement agreed upon a 
restriction on the authorised dealer's freedom to carry out passive sales of the 
products covered by the exclusive distribution contract to customers based in 
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BASF V COMMISSION 
other Member States and whether, in consequence, they concluded an agreement 
prohibited by Article 85(1) of the Treaty, the Court must take a number of factors 
into account. Apart from examination of the wording of Article 2(2) and of the 
scope of the other clauses in the contract which relate to the authorised dealer's 
obligation under that clause, those factors include the factual and legal 
circumstances surrounding the conclusion and implementation of that agreement 
which enable its purpose to be elucidated. 
83 The wording of Article 2(2) clearly indicates that the parties prescribed a 
particular system for dealing with customer enquiries coming from outside the 
contract territory. It does not, however, specify the purpose for which those 
enquiries were to be passed on to the manufacturer or the consequences of this for 
the authorised dealer's freedom to carry out the passive sales solicited, especially 
where they came from customers based in other Member States. 
84 The Court would observe that for the purposes of construing the wording of that 
clause, it is immaterial that the passing-on obligation applies to enquiries, which 
seek merely to determine whether and on what terms Accinauto could supply, 
and not to. orders placed by customers outside the contract territory. As the 
Commission has pointed out, if a negative response were given to an enquiry 
passed on in pursuance of the clause, there would be no point in the customer 
placing an order with Accinauto. The fact that the authorised dealer is obliged to 
pass on enquiries which precede orders does not support the conclusion that he 
retains his freedom of decision in full and is not subject to any restriction as 
regards satisfying the orders. 
85 As regards the insertion of Article 2(2) into the agreement and the determination 
of its purpose in relation to that of other clauses providing for exchanges of 
information between the parties, it is necessary, first, to reject the applicant's 
argument that the passing-on obligations in Article 2(1) and (2) are of the same 
kind as the obligations to provide information contained in Article 4 of the 
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agreement. Although under Article 4(1) and (2) Accinauto undertakes to inform 
BASF regularly on sales and the market situation in the contract territory, that 
information is of a general nature and detailed particulars of it are to be given 
only by means of 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. 
86 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. 
87 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 applicant to 
achieve better planing of its distribution organisation and its commercial strategy. 
The Commission has rightly pointed out that, if the applicant wished to be 
informed as to the quantity and quality of the products concerned by the 
enquiries addressed to Accinauto, the passing-on obligation should have applied 
equally to enquiries from customers based in the contract territory. Such 
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BASF V COMMISSION 
information could, moreover, have been supplied to the applicant 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 Accinauto 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. 
88 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. 
89 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 applicant 
cannot deny the implicit content of that clause by invoking the fact that, in the 
exclusive distribution agreement for Nigeria which it also concluded in 1982, an 
express prohibition on exports was stipulated. Since that agreement was not 
subject to the requirements laid down by the Community competition rules, the 
parties were able to express their intentions more clearly. 
90 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 
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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 
91 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. 
92 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, Accinauto did not seek authorisa­
tion from BASF either to make deliveries to IMF or to fix the conditions 
applicable to those sales. 
93 Accinauto delivered the desired quantities to IMF and business relations 
between the two companies subsequently developed successfully. Until 1990, 
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orders from IMF increased consistently, as did the discounts granted to it by 
Accinauto. 
94 At the end of that period, the weakness of the pound sterling and price rises in 
Belgium and the Netherlands contributed to a fall in parallel imports of Glasurit 
products into the United Kingdom. For that reason, the applicant did not share 
the concerns on the subject of parallel imports expressed by BASF C & I in a fax 
message of 28 March 1990. 
95 Nevertheless, since there was a shortage of certain Glasurit products, Mr 
Dudouet was asked as a matter of priority to use the available products to supply 
customers in his exclusive distribution territory. 
96 As from June 1989, the sales by Accinauto 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 Accinauto 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. 
97 Contrary to what is stated in points 75 and 76 of the preamble to the contested 
decision, Accinauto did not cease to supply IMF at the end of May 1990 but only 
in December 1990. The first order which reached Accinauto since the delivery at 
the end of May 1990 was dated 4 December 1990. IMF did not place any new 
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orders between those two dates, despite the reference to a future order in the 
letter from IMF's lawyers to Accinauto of 3 July 1990. 
98 Accinauto 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 
Accinauto 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 Accinauto 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. 
99 Accinauto 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. 
100 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. 
101 BASF had established an information network between itself and its distributors, 
including Accinauto, 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 
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Glasurit products, it wished to be aware of product flows and the sales situation 
in the various national markets. 
102 The applicant further considers that it might legitimately expect its exclusive 
distributors to take care to ensure the best possible supply to established 
customers in their respective territories, and not to use slender resources to accept 
new orders or carry out deliveries outside those territories. 
103 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. 
104 The applicant maintains that the situation of shortage referred to gives a different 
complexion to the facts found by the Commission and thus permits a different 
explanation from that adopted in the contested decision (Case 77/77 BP v 
Commission [1978] ECR 1513, paragraphs 32 and 33; Joined Cases 29/83 and 
30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 16). 
105 The Commission reaffirms its conclusion that the parties' implementation of the 
agreement, especially after March 1986, confirms that Article 2(2) thereof did in 
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JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
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. It also points out 
that the applicant had already pleaded its difficulties in supply during the 
administrative procedure, and that these were made the subject of an in-depth 
analysis in the context of that procedure. 
106 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, Accinauto 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. 
107 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 Accinauto 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. 
108 In any event, according to the Commission, the conclusions which the applicant 
claims to draw from the judgment in BP and the recitals in the preamble to 
Regulation No 1983/83 are mistaken. The manufacturer could not require an 
exclusive distributor henceforth to sell only to customers based in the contract 
II - 1616 
BASF V COMMISSION 
territory while reserving for itself the corresponding right to refuse to supply that 
distributor in a 'shortage situation'. Such a clause, the Commission submits, is 
incompatible with Regulation No 1983/83; in order to enjoy the advantages 
conferred by that regulation, the applicant must also bear the disadvantages. 
— Findings of the Court 
109 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. 
110 In that respect, the applicant denies the existence of a causal link between the 
facts noted in the contested decision and the implementation of an alleged 
agreement contrary to Article 85(1) of the Treaty. 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. 
111 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. 
112 The supply difficulties referred to cannot therefore explain BASF's actions in 
marking products sold by distributors in Belgium, the Netherlands and Germany 
II - 1617 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
during 1985 and 1986 with a view to identifying the channels through which 
Glasurit products arrived on the United Kingdom market. 
113 Nor can those difficulties substantiate the explanation given by the applicant for 
its contacts with Accinauto 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. 
1 1 4 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. 
115 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. 
116 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, the applicant's arguments as to the lawfulness of its conduct in a 
situation of shortage, particularly in the light of the judgment in BP and the 
II - 1618 
BASF V COMMISSION 
recitals in the preamble to Regulation No 1983/83 of 22 June 1983, are 
irrelevant for the purposes of the examination of this case. 
117 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.' 
118 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 
II - 1619 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
large body repair businesses will not be tempted or asked to do business with 
Great Britain, which would considerably disrupt our internal market.' 
119 Those particularly clear documents show that, contrary to what the applicant 
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.' 
120 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 
121 The applicant complains that the Commission took insufficient account of the 
particularities of the British market in vehicle refinishing paints. 
II - 1620 
BASF V COMMISSION 
122 It states that the marketing costs for its products were and remain higher in the 
United Kingdom than in other European markets. The relatively late introduction 
of 'new technology' products to the British market left BASF C & I facing 
exceptional costs in making that technology known and providing after-sales 
service at the workshops. Sellers of several brands and parallel importers, who 
did not offer technical support or a full range of products, profited without cost 
to themselves from the services supplied by the manufacturer and its exclusive 
distributor. 
123 The applicant indicates 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. 
124 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. 
125 The applicant challenges the accuracy of the market shares held at point 16 of the 
recitals to the contested decision to be accounted for by parallel imports of 
Glasurit products as a proportion of total sales of those products in the United 
Kingdom market between 1986 and 1990. In reality, the total value of parallel 
II - 1621 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
imports for each year remained well below DEM 2 000 000, with Accinauto's 
total sales to IMF representing well below DEM 500 000, even in the best years. 
126 BASF maintains that the prices to be taken into account for competition purposes 
are the distributor's net selling prices, which are 'catalogue prices' less the 
discount granted to the buyer. It argues that the differences between the prices 
charged in Belgium and those charged in the United Kingdom diminish 
significantly if net selling prices rather than 'catalogue prices' are considered. It 
cites by way of example the differences between the 'catalogue prices' and the net 
prices charged by Accinauto and BASF C & I in 1988 for product lines 21 and 54. 
That shows, in the applicant's submission, that parallel import activity was worth 
while only if sufficiently large discounts were granted to importers. 
127 Regarding price differentials, the applicant submits new figures. It claims that 
annexes 55 and 56 which it produced to the Court for inclusion in the case-file 
prove that discounts granted by BASF C & I might in practice be as much as 
52%, taking net selling prices in the United Kingdom to a level very close to the 
net prices charged by Accinauto in Belgium, despite the differences at the 
'catalogue prices' level. The applicant recalls that, in its reply to the statement of 
objections, it sent the Commission a comparative price table for the period from 
1988 to 1991. That table showed that some of the goods were delivered by BASF 
at lower prices in the United Kingdom than in Belgium, which explained why 
IMF was always asking for greater discounts from Accinauto. 
128 Furthermore, the Commission failed to take account of the fact that, besides 
Accinauto, distributors in other Member States might serve as a source of supply 
for parallel imports into the United Kingdom. According to the current 
knowledge of the applicant, a large number of undertakings besides Accinauto 
sold Glasurit products for importation into the United Kingdom during the 
period in question. The parallel importers were perfectly well informed as to the 
II - 1622 
BASF V COMMISSION 
respective sources of supply in the various countries of the Community and 
carried out common purchases with distributors charging the most advantageous 
prices for each line of products. That is confirmed by the fact that IMF obtained 
certain products on behalf of Calbrook Cars Ltd from Accinauto, whereas 
Calbrook obtained other products on better terms in the Netherlands and 
Germany. 
129 According to the applicant, the quantities exported by Accinauto constituted only 
a fraction of the total volume of parallel imports of dual-ingredient Glasurit 
products into the United Kingdom, representing at most 1% of sales of those 
products on the British market. The applicant therefore challenges the 
Commission's conclusion that the agreement complained of produced an 
appreciable effect on trade between Member States. 
130 The Commission replies that the documents discovered at BASF's premises show 
the price differences noted in the contested decision and that those differences 
were likely to encourage parallel imports from Belgium to the United Kingdom. It 
is not established that BASF C & I granted the considerable discounts alleged by 
the applicant, reducing the actual differences between the net selling prices of 
Glasurit products of lines 21 and 54. If such discounts had indeed averaged 50%, 
they would have been far higher than discounts granted in the other contract 
territories. In any event, the applicant itself admits in its application that the 
differences between prices charged in the United Kingdom and those in other 
Member States were one of the causes of the parallel imports. 
131 The Commission contends that it has demonstrated that the agreement in 
question was likely to have an appreciable effect on intra-Community trade, and 
points out that it is not required to prove that such an effect on trade between 
Member States actually occurred (Case 19/77 Miller v Commission [1978] ECR 
131, paragraph 15). It emphasises that it carried out the necessary investigations 
and presented in the contested decision its findings concerning the market 
II - 1623 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
position of the undertakings concerned, the size of their production and exports 
and their pricing policy. 
132 The new tables produced by the applicant concerning the discounts granted by 
BASF C & I to four of its main customers in 1988 and 1989 are not conclusive. 
Nor does Annex 54 permit the conclusion that the price differences between 
Belgium and the United Kingdom were insignificant. The Commission states that 
it acknowledged that the price differences for products in lines 21 and 54, which 
were very marked in 1985-1986, diminished significantly in 1989-1990. Never­
theless, it was precisely in the face of pressure from parallel imports that the 
applicant made an effort to align the prices charged in the two countries, which 
shows how essential it is that parallel imports can be effected without hindrance. 
— Findings of the Court 
133 Article 85(1) of the Treaty 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 ν 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 85(1) of the Treaty 
should be applied (Miller, paragraph 10; Parker Pen, paragraph 44). 
134 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 
II - 1624 
BASF V COMMISSION 
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 indicated in point 16 of the preamble to the contested 
decision. 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. 
135 In those circumstances, the Court finds that that agreement, by virtue of its 
object, constitutes a restriction on competition prohibited by Article 85(1) of the 
Treaty, 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). 
136 The applicant's other objections to the Commission's finding of infringement of 
Article 85(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 
137 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 
II - 1625 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
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. 
138 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 
139 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 85(1) of the Treaty, 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 85(1) of the Treaty (Miller, paragraph 7; Ahlström 
Osakeyhtiö, paragraph 175). In this case, the letters relied on by the applicant 
do not establish that the parties genuinely intended to renounce the offending 
II - 1626 
BASF V COMMISSION 
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. 
1 4 0 It follows from all the foregoing considerations that the plea alleging infringe­
ment of Article 85(1) of the Treaty must be dismissed. 
The plea alleging misuse of powers in determining the amount of the fine 
Arguments of the parties 
1 4 1 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. 
142 BASF 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 
II - 1627 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
agreement but by an independent decision of Accinauto. 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. 
143 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, and the applicant clearly informed it no later than June 1990 
that it 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. 
144 The applicant further argues that the function of a fine cannot be to aggravate the 
economic difficulties of an undertaking in the long term, even though the purpose 
of a fine is to penalise a breach of the law and have a deterrent effect. In 
determining the amount of the fine, the Commission cannot have been entirely 
unaware of the fact that BASF C & I had suffered significant losses between 1985 
and 1995 and that the applicant itself forecast losses in 1995. In those 
circumstances, a token fine would have been appropriate. 
145 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. 
146 The Commission argues that prohibitions on exports are by their nature serious 
infringements of competition, since they seek artificially to maintain price 
II - 1628 
BASF V COMMISSION 
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. 
147 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. 
148 The amount of the fine does have to be reduced by reference to losses suffered by 
the applicant and its subsidiary BASF C & I, since the Commission is not required 
to take into account the negative financial situation of the addressee of the 
decision. In any event, the losses suffered by the British subsidiary between 1985 
and 1989 were compensated for by BASF's profits on the sale of vehicle 
refinishing products in the United Kingdom over the same period. 
149 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 
II - 1629 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
impose a passing-on obligation on Accinauto and thereby to control parallel 
exports to the United Kingdom. 
150 The Commission observes, moreover, that, in fixing the fine at ECU 2 700 000, it 
remained well below the figure of 10% of the applicant's overall turnover in the 
preceding business year, that being the ceiling prescribed by Article 15(2) of 
Regulation No 17. 
— Findings of the Court 
151 Under Article 15(2) of Regulation No 17, the Commission may by decision 
impose on undertakings which have intentionally or negligently infringed 
Article 85(1) of the Treaty 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). 
152 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 
II - 1630 
BASF V COMMISSION 
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). 
153 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 
Commission stated at the hearing that the amount of ECU 2 700 000 was 
calculated by applying a coefficient of 7.5% to the turnover of ECU 36 600 000 
which, according to information supplied by BASF, was achieved in 1991 through 
sales of Glasurit products in the United Kingdom, Belgium and Luxembourg. The 
amount of the fine thus represented only 0.3% of BASF's overall turnover in 
1991, which reached approximately ECU 834 000 000 (DEM 1 668 000 000; see 
paragraph 1 above). 
154 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). 
155 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. 
156 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 85(1) of the Treaty. Even if the Court were unable to 
II - 1631 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
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. 
157 It should also 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. 
158 Finally, the Commission cannot be blamed for not having taken the possibly 
difficult financial situation of the applicant into account as a mitigating factor. To 
have done so would have been tantamount to conferring on the applicant an 
unjustified competitive advantage in relation to undertakings better adapted to 
market conditions (IAZ, paragraph 55). 
159 In those circumstances, this Court finds that, in setting the fine on the applicant at 
ECU 2 700 000, the Commission did not exceed the bounds of the discretion 
which it enjoys in determining the amount of fines. 
160 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 repay the costs connected with the bank guarantee 
securing payment of the fine. 
II - 1632 
BASF V COMMISSION 
Costs 
161 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 
II - 1633 
JUDGMENT OF 19. 5. 1999 — CASE T-175/95 
Delivered in open court in Luxembourg on 19 May 1999. 
H. Jung 
Registrar 
B. Vesterdorf 
President 
II - 1634