5.

I now come to the submission made by Rheinzink concerning its liability foian infringement committed by the undertaking which it succeeded on 1 October 1981, Rheinisches Zinkwalzwerk GmbH &Co. Rheinzink claims that only proof of continuity in the unlawful conduct between the two successive undertakings could allow the Commission to address its decision to it. That requirement is not fulfilled in the present case because the infringements of which it is accused took place before the creation of the new company. Rheinzink bases its argument on an interpretation of the Court's decision in the Suiker Unie case, where the Court emphasized the need for an “obvious continuity” uniting the undertakings in question in order to consider the successor undertaking liable for the acts of the dissolved one. ( 11 ) The Commission considers, on the other hand, that the succession must be evaluated in the light of the fact that, from an economic point of view, the undertakings have the same function. It is the economic continuity which is decisive and not the legal relationship between the successive companies. The Commission again refers to the Court's decision in the Suiker Unie case on this point. In that judgment, which involved an association of cooperatives which had succeeded a previous association and the cooperatives which were members of it, the Court took the view that the behaviour of the two association was characterized by an “obvious continuity, which means that the whole of this behaviour must be attributed to the applicant” (paragraph 87). However, the Court reached that conclusion on the basis of the following three findings: The applicant had assumed all the rights and liabilities of the four cooperatives which were members of the former association (paragraph 84); The applicant did not deny that the name “Suiker Unie” covered “the same undertakings, which were run for the most part by the same persons and had registered offices at the same address” (paragraph 85); It did not claim that its conduct on the relevant market differed from that of the former association (paragraph 86). It is clear from those grounds that Rheinzink's interpretation is too narrow. It singles out one of the factors mentioned (the continuity of behaviour) and seems to require that such continuity be demonstrated by continuity of illegal conduct. The Commission, for its part, puts forward an argument which ignores the legal aspects of the succession and emphasizes the economic continuity existing between the successive companies. So wide an interpretation is likely to establish an excessively loose causal relationship between the activities of the undertakings. Before I present my own observations, it is necessary to recall the general imperatives which must guide us in this matter. The problem must be resolved exclusively by reference to the rules of Community law. The application of Community law cannot, without jeopardizing the uniform respect of the Community principles of competition, be made to depend on the rules of national law. In that connection, as Mr Advocate General Mayras rightly pointed out in the Suiker Unie case, Council Regulation No 17/62 must not be deprived of all effectiveness. ( 12 ) What would be the real extent of the control exercised by the Commission, if an undertaking were able to circumvent Articles 85 and 86 of the Treaty merely by transforming itself under the rules of national law? Mr Advocate General Mayras quoted as a significant example the case of an undertaking transformed after the occurrence of a course of conduct designed to prevent freedom of competition, but before the establishment by the Commission of an infringement of the rules of the Treaty. In such a case, there was particular cause to fear that the succession of undertakings would allow the successor to avoid Community sanctions, thereby rendering the Commission's powers devoid of substance. What is the situation in the present case? The hypothesis outlined above corresponds exactly to the situation described by the applicant company, which was formed after 1976 but before the Commission decision. That finding is not sufficient, but it leads me to adopt the Commission's view, subject to some amplification. I share the Commission's view regarding the functional continuity between the two successive companies. They carried on the same economic activities, a point which the applicant does not contest. I note, moreover, that it assumed the rights and obligations of the company Rheinisches Zinkwalzwerk, as is clear from the trade register and as is recognized by Rheinzink itself, which refers to the provisions of German law. Moreover, it has not denied that the registered office and the management of the undertaking remained unchanged. Admittedly, the two successive undertakings are not identical. The name and the legal form are different. It seems to me, however, that the factors mentioned make it sufficiently clear that both the economic and legal links uniting the two undertakings allow their acts to be treated as continuous so as to justify imputing the infringements complained of to Rheinzink. In conclusion, I propose 1. That the Court should grant the application made by CRAM and Rheinzink and declare void the decision by which the Commission: Found proven the infringements of Article 85 of the Treaty resulting: (a) from the concerted action taken by CRAM and Rheinzink in relation to Schütz; and (b) from the clauses requiring resale in a specific country inserted in tie contracts concluded by CRAM and Rheinzink with Schütz; and Imposed fines on the applicants for the first infringement mentioned; 2. That the Court should uphold the Commission decision as regards tne reciprocal assistance contract.