15.

During the period in question, various standard-form contracts for the sale and leasing of machines and the supply of cartons were in force between Tetra Pak and its customers in the various Member States. The content of the clauses incorporated in those contracts which had an effect on competition was summarized in paragraph 12 of the judgment under appeal, which in turn cites the contested decision, as follows: ‘2.1. Conditions of sale of Tetra Pak equipment (Annex II. 1) Standard purchase contracts exist in the following five countries: Greece, Ireland, Italy, Spain and the United Kingdom. For each clause, the country or countries in which it is applicable are indicated in brackets. 2.1.1. Equipment configuration In Italy, Tetra Pak reserves an absolute right of control over the equipment configuration by prohibiting the buyer: (i) from adding accessories to the machine; (ii) from making modifications to the machine, and adding or removing anything to or from it; (iii) from moving the machine. 2.1.2. Operation and maintenance of equipment There are five clauses concerning the operation and maintenance of equipment, which are intended to give Tetra Pak an exclusivity and a right of inspection in this area: (iv) it has an exclusive right to maintain and repair equipment (all countries except Spain); (v) it has an exclusive right to supply spare parts (all countries except Spain); (vi) it has the right to provide, free of charge, assistance, training, maintenance and updating services not requested by the client (Italy); (vii) there is a sliding scale for part of the charges made for assistance, maintenance and technical updating (with a possible discount of up to 40% of the basic monthly charge) depending on the number of cartons used on all Tetra Pak machines of the same type (Italy); (viii) the purchaser is required to inform Tetra Pak of any improvements or modifications to the equipment and to grant Tetra Pak ownership of any resulting intellectual property right (Italy). 2.1.3. Cartons There are four clauses relating to cartons which also give Tetra Pak an exclusive right of control over the product: (ix) the purchaser must use only Tetra Pak cartons on the machines (all countries); (x) the purchaser must obtain supplies of cartons from Tetra Pak or a supplier designated by Tetra Pak (all countries); (xi) the purchaser is required to inform Tetra Pak of any improvements or technical modifications made to the cartons and to grant Tetra Pak ownership of any resulting intellectual property rights (Italy); (xii) Tetra Pak reserves the right to inspect the wording to be used on cartons (Italy). 2.1.4. Inspections Two clauses are more specifically concerned with monitoring the purchaser's compliance with his contractual obligations: (xiii) the purchaser is required to submit a monthly report (Italy); (xiv) Tetra Pak has the right to carry out inspections without notice (Italy). 2.1.5. Transfer of ownership or use of equipment Two clauses in the contract limit the purchaser's right to resell or transfer the equipment to third parties: (xv) the purchaser is required to obtain Tetra Pak's agreement before selling or transferring the use of the equipment (Italy), resale is subject to conditions (Spain), and Tetra Pak reserves the right to repurchase the equipment at a prearranged fixed price (all countries); failure to comply with this clause may give rise to a specific penalty (Greece, Ireland, United Kingdom); (xvi) the purchaser must ensure that any third party to whom he resells the equipment assumes all his obligations (Italy, Spain). 2.1.6. Guarantee (xvii) The guarantee given on the equipment applies only if the purchaser complies with all of his contractual obligations (Italy) or, at the very least, uses only Tetra Pak cartons (other countries). 2.2. Conditions for the leasing of Tetra Pak equipment (Annex II.2) Standard lease contracts exist in all countries within the Community except Greece and Spain. These contracts include the majority of the clauses contained in purchase contracts, adapted to the circumstances of leasing. Other conditions are specific to leasing but invariably pursue the same goal, i.e. maximum reinforcement of the links between Tetra Pak and its customer. 2.2.1. Equipment configuration Clauses (i), (ii) and (iii) (Italy in the case of clause (i); all countries in the case of clause (ii); France, Ireland, Italy, Portugal, United Kingdom in the case of clause (iii)) are included. (xviii) An additional clause requires the leaseholder to use only cases, outer packages and/or containers supplied by Tetra Pak for transport purposes (Germany, Belgium, Italy, Luxembourg, the Netherlands) or if the conditions are equal to give preference to obtaining supplies from Tetra Pak (Denmark, France). 2.2.2. Operation and maintenance of equipment Clauses (iv) and (v) (all countries) are included, granting Tetra Pak exclusive rights. Likewise, clause (viii) appears, conferring on Tetra Pak ownership of the intellectual property rights to any modifications made by the user (Belgium, Germany, Italy, Luxembourg, the Netherlands) or, at the very least, requiring the leaseholder to grant an operating licence to Tetra Pak (Denmark, France, Ireland, Portugal, United Kingdom). 2.2.3. Cartons Contracts also contain clauses (ix) (all countries) and (x) (Italy) concerning the exclusive use of Tetra Pak cartons, clause (xi) conferring on Tetra Pak ownership of the rights to any improvements (Denmark, Italy) or, at the very least, requiring leaseholders to grant an operating licence to Tetra Pak (France, Ireland, Portugal, United Kingdom), and clause (xii) giving Tetra Pak the right to inspect the wording or brand names which the client wishes to use on the cartons (Germany, Spain, Greece, Italy, the Netherlands, Portugal, United Kingdom). 2.2.4. Inspections In the case of sale, the leaseholder must return a monthly report (clause (xiii) — all countries), failure to do so giving rise to fixed-rate invoicing (Belgium, Luxembourg, the Netherlands), and allow the premises at which the equipment is installed to be inspected (clause (xiv) — all countries) without notice (all countries except Denmark, Germany, Ireland, Portugal and the United Kingdom). (xix) A further clause allows Tetra Pak to examine — at any time (Denmark, France) — the accounts of the company leasing the equipment (all countries) and (depending on the country) its invoices, correspondence or any other documents necessary to check the number of cartons used. 2.2.5. Transfer of the lease, subleasing, transfer of use or use on behalf of third parties In the case of sale, ownership may be subsequently transferred only where very restrictive conditions are complied with. (xx) The terms of lease contracts likewise exclude the transfer of the lease, subleasing (all countries) or even simple commission work on behalf of third parties (Italy). 2.2.6. Guarantee The wording of lease contracts is less precise than that of purchase contracts: they link the guarantee to compliance with “instructions” given by Tetra Pak concerning the “maintenance” and “proper handling” of the machine (all countries). However, the terms “instructions”, “maintenance” and “proper handling” are sufficiently broad to be interpreted as also including at least the sole use of Tetra Pak spare parts, repair and maintenance services and packaging materials. Such an interpretation is confirmed by the written and oral replies given by Tetra Pak to the statement of objections. 2.2.7. Fixing of rental and conditions of payment The rental is made up of the following components (all countries): (xxi) A “base rental” payable at the time the machine is placed at the leaseholder's disposal. Its amount is not necessarily any lower than the selling price of the machines concerned and in fact makes up almost the total sum of present and future rental payments (more than 98% in some cases); an annual rent, payable quarterly in advance; (xxii) a monthly production rental, the amount of which decreases according to the number of cartons used on all Tetra Pak machines of the same type. This component replaces the sliding scale of charges — set at a similar level — for part of the maintenance costs payable in the case of sale (see clause (vii)). In some countries (Germany, France, Portugal), there is a specific penalty if this fee is not paid within the prescribed period. 2.2.8. Term of the lease The term of the lease and the conditions for its termination vary from one Member State to another: (xxiii) The minimum term of the lease ranges from three years (Denmark, Ireland, Portugal, United Kingdom) to nine years (Italy). 2.2.9. Penalty clause (xxiv) Over and above the usual damages and interest, Tetra Pak reserves the right to impose a penalty on any leaseholder who infringes any of his obligations under the contract, the amount of such penalty being fixed at Tetra Pak's discretion, up to a maximum threshold, according to the gravity of the case (Italy). 2.3. Conditions for the supply of cartons (Annex 113) Standard supply contracts exist in Greece, Ireland, Italy, Spain and the United Kingdom: they arc compulsory whenever a client purchases rather than leases a machine. 2.3.1. Exclusive supplies (xxv) The purchaser must undertake to obtain supplies of all packaging materials to be used on the given Tetra Pak machine(s) (all countries) and on any other Tetra Pak machine purchased subsequently (Italy) solely from Tetra Pak. 2.3.2. Contract term (xxvi) The contract is signed for an initial period of nine years, renewable for a further period of five years (Italy) or for the period during which the purchaser remains in possession of the machine (Greece, Ireland, Spain, United Kingdom). 2.3.3. Fixing of prices (xxvii) Cartons are delivered at the price applicable at the time of order. No system of adjustment or indexing is provided for (all countries). 2.3.4. Wording Contracts again include Tetra Pak's right to inspect the wording or brand names which the client wishes to use on cartons (clause (xii)).’