Keywords

Summary



Keywords

1 . COMPETITION - ADMINISTRATIVE PROCEDURE - INAPPLICABILITY OF ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

2.COMMUNITY LAW - PRINCIPLES - OBSERVANCE OF THE RIGHT TO A FAIR HEARING - FUNDAMENTAL PRINCIPLE - SPHERE OF APPLICATION - COMPETITION - ADMINISTRATIVE PROCEDURE - SCOPE OF THE PRINCIPLE

( COUNCIL REGULATION NO 17 , ART . 19 ( 1 ); REGULATION NO 99/63 OF THE COMMISSION , ART . 4 )

3.COMPETITION - ADMINISTRATIVE PROCEDURE - OBSERVANCE OF THE RIGHT TO A FAIR HEARING - STATEMENT OF OBJECTIONS - REQUIRED CONTENTS

( COUNCIL REGULATION NO 17 , ART . 19 ( 1 ); REGULATION NO 99/63 OF THE COMMISSION , ART . 4 )

4.COMPETITION - ADMINISTRATIVE PROCEDURE - OBSERVANCE OF THE RIGHT TO A FAIR HEARING - STATEMENT OF OBJECTIONS - REQUIRED CONTENTS - INDICATION OF THE CRITERIA FOR CALCULATION OF THE PROPOSED FINE - INDICATION BEFORE THE APPROPRIATE TIME

( COUNCIL REGULATION NO 17 ; REGULATION NO 99/63 OF THE COMMISSION , ART . 4 )

5.COMPETITION - ADMINISTRATIVE PROCEDURE - OBSERVANCE OF THE RIGHT TO A FAIR HEARING - NON-DISCLOSURE TO UNDERTAKINGS OF DOCUMENTS ON WHICH THE COMMISSION ' S FINDINGS WERE BASED - COMMISSION ' S FINAL DECISION BASED ON THE CONTENTS OF THE DISPUTED DOCUMENTS - BREACH OF THE RIGHT TO A FAIR HEARING - STATEMENTS CONCERNING MATTERS OF PURELY SECONDARY IMPORTANCE - VALIDITY OF THE FINAL DECISION AS A WHOLE - REVIEW BY THE COURT OF THE MERITS OF THE DECISION - CONSIDERATION OF THE CONTESTED DOCUMENTS - NOT APPROPRIATE

( COUNCIL REGULATION NO 17 , ART . 19 ( 1 ); REGULATION NO 99/63 OF THE COMMISSION , ART . 4 )

6.COMPETITION - ADMINISTRATIVE PROCEDURE - OBSERVANCE OF THE RIGHT TO A FAIR HEARING - CONSULTATION OF THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND DOMINANT POSITIONS - NON-DISCLOSURE TO THE UNDERTAKINGS CONCERNED - PERMISSIBILITY

( COUNCIL REGULATION NO 17 , ART . 10 ( 6 ))

7.COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - AGREEMENTS BETWEEN UNDERTAKINGS - EXCLUSIVE DISTRIBUTION AGREEMENTS - COMPANY WHOSE OBJECT IS TO IMPORT AND ORGANIZE THE SALE OF PRODUCTS IN SEVERAL MEMBER STATES - CENTRAL POSITION OCCUPIED BY THE COMPANY IN THE SALES ORGANIZATION AND IN THE COORDINATION OF NATIONAL DISTRIBUTORS - DUTY OF VIGILANCE INCUMBENT UPON THE COMPANY REGARDING COMPETITION RULES

( EEC TREATY , ART . 85 ( 1 ))

8.COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - AGREEMENTS BETWEEN UNDERTAKINGS - EFFECT ON TRADE BETWEEN MEMBER STATES - CRITERIA - INSIGNIFICANT EFFECT ON THE MARKET - AGREEMENT NOT PROHIBITED

( EEC TREATY , ART . 85 ( 1 ))

9.COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - AGREEMENTS BETWEEN UNDERTAKINGS - EXCLUSIVE DISTRIBUTION AGREEMENTS - CONDUCT ON THE PART OF EXCLUSIVE DISTRIBUTORS INTENDED TO RESTRAIN PARALLEL IMPORTS - EFFECT ON TRADE BETWEEN MEMBER STATES - CRITERIA

( EEC TREATY , ART . 85 ( 1 ))

10.COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - PROHIBITION - INFRINGEMENTS - JUSTIFICATION - PARALLEL IMPORTS - NO JUSTIFICATION

( EEC TREATY , ART . 85 ( 1 ))

11.COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - NOTIFICATION - EFFECTS - IMPOSITION OF A FINE IN RESPECT OF AN INFRINGEMENT NOT NOTIFIED - DEFENCE BASED ON POSSIBILITY OF EXEMPTION - INADMISSIBILITY

( EEC TREATY , ART . 85 ( 3 ); COUNCIL REGULATION NO 17 , ART . 4 )

12.COMPETITION - COMMUNITY RULES - INFRINGEMENTS - FINE - INFRINGEMENT COMMITTED INTENTIONALLY OR NEGLIGENTLY - ACCOUNTABILITY OF AN UNDERTAKING FOR THE CONDUCT OF THOSE AUTHORIZED TO ACT ON ITS BEHALF - CONDITIONS

( COUNCIL REGULATION NO 17 , ART . 15 ( 1 ) AND ( 2 ))

13.COMPETITION - AGREEMENTS , DECISIONS AND CONCERTED PRACTICES - PROHIBITION - INFRINGEMENTS - JUSTIFICATION - RESTRICTIONS IMPOSED BY PUBLIC AUTHORITIES - NO JUSTIFICATION

( EEC TREATY , ART . 85 )

14.COMPETITION - COMMUNITY RULES - INFRINGEMENTS - FINES - PURPOSE - DETERMINATION - CRITERIA - GRAVITY OF THE INFRINGEMENTS - BASIS OF ASSESSMENT

( COUNCIL REGULATION NO 17 , ART . 15 ( 1 ) AND ( 2 ))

15.COMPETITION - COMMUNITY RULES - INFRINGEMENTS - FINES - DETERMINATION - CRITERIA - RAISING OF THE GENERAL LEVEL OF FINES - PERMISSIBILITY - CONDITIONS

( COUNCIL REGULATION NO 17 , ART . 15 ( 1 ) AND ( 2 ))

16.COMPETITION - COMMUNITY RULES - INFRINGEMENTS - FINES - DETERMINATION - CRITERIA - TOTAL TURNOVER OF THE UNDERTAKING CONCERNED - TURNOVER ACCOUNTED FOR BY THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED - CONSIDERATION OF BOTH FACTORS - LIMITS

( COUNCIL REGULATION NO 17 , ART . 15 ( 1 ) AND ( 2 ))

17.COMPETITION - COMPETITION RULES - INFRINGEMENTS - FINE - INFRINGEMENTS TREATED AS A SINGLE OFFENCE - CONCEPT - IMPOSITION OF A SINGLE FINE - PERMISSIBILITY

( COUNCIL REGULATION , NO 17 , ART . 15 )

Summary

1 . ALTHOUGH THE COMMISSION IS BOUND TO OBSERVE THE PROCEDURAL SAFEGUARDS CONTAINED IN THE PROVISIONS OF COMMUNITY LAW ON COMPETITION , THAT DOES NOT MEAN THAT WHEN IT APPLIES THOSE PROVISIONS IT CAN BE DESCRIBED AS A ' ' TRIBUNAL ' ' WITHIN THE MEANING OF ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS , BY VIRTUE OF WHICH EVERYONE IS ENTITLED TO A FAIR HEARING BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL .

2.THE PROCEDURAL SAFEGUARDS CONTAINED IN ARTICLE 19 ( 1 ) OF REGULATION NO 17 AND IN REGULATION NO 99/63 ARE AN APPLICATION OF THE FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW WHICH REQUIRES THE RIGHT TO A FAIR HEARING TO BE OBSERVED IN ALL PROCEEDINGS , EVEN THOSE OF AN ADMINISTRATIVE NATURE , AND LAYS DOWN IN PARTICULAR THAT THE UNDERTAKING CONCERNED MUST HAVE BEEN AFFORDED THE OPPORTUNITY , DURING THE ADMINISTRATIVE PROCEDURE , TO MAKE KNOWN ITS VIEWS ON THE TRUTH AND RELEVANCE OF THE FACTS AND CIRCUMSTANCES ALLEGED AND ON THE DOCUMENTS USED BY THE COMMISSION TO SUPPORT ITS CLAIM THAT THERE HAS BEEN AN INFRINGEMENT OF THE TREATY .

3.THE STATEMENT OF OBJECTIONS MUST SET FORTH CLEARLY ALL THE ESSENTIAL FACTS UPON WHICH THE COMMISSION IS RELYING AT THAT STAGE OF THE PROCEDURE FOR THE APPLICATION OF THE COMMUNITY COMPETITION RULES . THAT MAY BE DONE SUMMARILY AND THE SUBSEQUENT DECISION IS NOT NECESSARILY REQUIRED TO BE A REPLICA OF THE STATEMENT OF OBJECTIONS . THE COMMISSION MUST TAKE INTO ACCOUNT THE FACTORS EMERGING FROM THE ADMINISTRATIVE PROCEDURE IN ORDER EITHER TO ABANDON SUCH OBJECTIONS AS HAVE BEEN SHOWN TO BE UNFOUNDED OR TO AMEND AND SUPPLEMENT ITS ARGUMENTS , BOTH IN FACT AND IN LAW , IN SUPPORT OF THE OBJECTIONS WHICH IT MAINTAINS , PROVIDED HOWEVER THAT IT RELIES ONLY ON FACTS ON WHICH THE PARTIES CONCERNED HAVE HAD AN OPPORTUNITY TO MAKE KNOWN THEIR VIEWS AND PROVIDED THAT , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , IT HAS MADE AVAILABLE TO THEM THE INFORMATION NECESSARY FOR THEIR DEFENCE .

4.WHERE IN ITS STATEMENT OF OBJECTIONS THE COMMISSION EXPRESSLY STATES THAT IT WILL CONSIDER WHETHER IT IS APPROPRIATE TO IMPOSE FINES ON THE UNDERTAKINGS CONCERNED AND INDICATES THE MAIN FACTUAL AND LEGAL CRITERIA CAPABLE OF ATTRACTING A FINE , SUCH AS THE GRAVITY AND THE DURATION OF THE ALLEGED INFRINGEMENT AND WHETHER THAT INFRINGEMENT WAS COMMITTED ' ' INTENTIONALLY OR NEGLIGENTLY ' ' , IT FULFILS ITS OBLIGATION TO RESPECT THE RIGHT OF UNDERTAKINGS TO BE HEARD , INASMUCH AS IT GIVES THEM THE NECESSARY DETAILS TO ENABLE THEM TO DEFEND THEMSELVES NOT MERELY AGAINST THE FINDING OF AN INFRINGEMENT BUT ALSO AGAINST THE IMPOSITION OF FINES .

ON THE OTHER HAND , THE UNDERTAKINGS CANNOT REQUIRE THE COMMISSION TO INDICATE TO THEM , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , THE CRITERIA ON THE BASIS OF WHICH IT INTENDS TO CALCULATE THE FINES . TO GIVE INDICATIONS AS REGARDS THE LEVEL OF THE FINES ENVISAGED , BEFORE THE UNDERTAKINGS HAVE BEEN GIVEN AN OPPORTUNITY TO SUBMIT THEIR OBSERVATIONS ON THE ALLEGATIONS AGAINST THEM , WOULD BE TO ANTICIPATE THE COMMISSION ' S DECISION AND WOULD THUS BE INAPPROPRIATE .

5.IF THE UNDERTAKINGS AGAINST WHICH PROCEEDINGS UNDER THE COMMUNITY COMPETITION RULES HAVE BEEN BROUGHT WERE NOT ACQUAINTED OR WERE ONLY PARTIALLY ACQUAINTED , BEFORE THE COMMISSION ADOPTED ITS FINAL DECISION , WITH THE DOCUMENTS ON WHICH THE COMMISSION BASED ITS FINDINGS , THE COMMISSION CANNOT BASE ITS FINAL DECISION ON THE CONTENTS OF THOSE DOCUMENTS .

HOWEVER , IN SO FAR AS THE SAID FINDINGS RELATE TO MATTERS WHICH ARE OF PURELY SECONDARY IMPORTANCE IN RELATION TO THE INFRINGEMENTS FOUND TO HAVE BEEN COMMITTED IN THE FINAL DECISION , THAT BREACH OF THE RIGHT TO A FAIR HEARING CANNOT AFFECT THE VALIDITY OF THE WHOLE OF THE DECISION . INSTEAD , IT IS APPROPRIATE FOR THE COURT TO DISREGARD THE CONTENT OF THOSE DOCUMENTS WHEN CONSIDERING THE SUBSTANTIVE VALIDITY OF THE DECISION .

6.IT IS CLEAR FROM ARTICLE 10 ( 6 ) OF REGULATION NO 17 THAT CONSULTATION OF THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND DOMINANT POSITIONS REPRESENTS THE FINAL STAGE OF THE PROCEDURE FOR ESTABLISHING INFRINGEMENTS OF THE COMMUNITY COMPETITION RULES BEFORE THE ADOPTION OF THE FINAL DECISION AND THE OPINION IS GIVEN ON THE BASIS OF A DRAFT OF THE DECISION . TO GIVE THE UNDERTAKINGS THE OPPORTUNITY OF MAKING THEIR VIEWS KNOWN ON THAT OPINION AND , THEREFORE , ON THE DRAFT DECISION WOULD AMOUNT TO REOPENING THE PREVIOUS STAGE OF THE PROCEDURE , WHICH WOULD BE CONTRARY TO THE SYSTEM INTENDED BY THE REGULATION . MOREOVER , REGARDLESS OF THE OPINION OF THE COMMITTEE , THE COMMISSION MAY BASE ITS DECISION ONLY ON FACTS ON WHICH THE UNDERTAKINGS HAVE HAD THE OPPORTUNITY OF MAKING KNOWN THEIR VIEWS . THE FAILURE TO DISCLOSE THE OPINION IS NOT CONTRARY THEREFORE TO THE PRINCIPLE OF THE RIGHT TO A FAIR HEARING .

7.A COMPANY WHOSE PURPOSE IS TO IMPORT AND ORGANIZE THE SALE OF PRODUCTS IN SEVERAL MEMBER STATES AND WHICH TO THAT END ATTEMPTS TO FIND A DISTRIBUTOR IN EACH OF THE MEMBER STATES IN QUESTION , OFFERS IT AN EXCLUSIVE DISTRIBUTORSHIP AGREEMENT , DIVIDES THE PRODUCTS IMPORTED AMONGST THE NATIONAL DISTRIBUTORS AND SEEKS TO COORDINATE THEIR SALES EFFORTS , INTER ALIA BY HOLDING REGULAR MEETINGS , IS OBLIGED , ON ACCOUNT OF ITS CENTRAL POSITION , TO DISPLAY PARTICULAR VIGILANCE IN ORDER TO PREVENT CONCERTED EFFORTS OF THAT KIND FROM GIVING RISE TO PRACTICES CONTRARY TO THE COMPETITION RULES , EVEN IF THOSE ACTIVITIES DO NOT NECESSARILY CONFER ON IT A DECISIVE INFLUENCE ON THE CONDUCT OF EACH OF THE DISTRIBUTORS .

8.IF AN AGREEMENT IS TO BE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES IT MUST BE POSSIBLE TO FORESEE WITH A SUFFICIENT DEGREE OF PROBABILITY , ON THE BASIS OF A SET OF OBJECTIVE FACTORS OF LAW OR OF FACT , THAT THE AGREEMENT IN QUESTION MAY HAVE AN INFLUENCE , DIRECT OR INDIRECT , ACTUAL OR POTENTIAL , ON THE PATTERN OF TRADE BETWEEN MEMBER STATES IN SUCH A WAY THAT IT MIGHT HINDER THE ATTAINMENT OF THE OBJECTIVES OF A SINGLE MARKET BETWEEN STATES .

EVEN AN EXCLUSIVE DEALING AGREEMENT WITH ABSOLUTE TERRITORIAL PROTECTION MAY ESCAPE THE PROHIBITION LAID DOWN IN ARTICLE 85 WHERE IT AFFECTS THE MARKET ONLY INSIGNIFICANTLY , REGARD BEING HAD TO THE WEAK POSITION OF THE PERSONS CONCERNED ON THE MARKET IN THE PRODUCTS IN QUESTION .

9.IF A COMPANY ENTRUSTED WITH EXCLUSIVE DISTRIBUTION IN THE TERRITORY OF A MEMBER STATE HAS A PERCENTAGE GREATER THAN THAT OF THE MAJORITY OF ITS COMPETITORS IN THE MARKET IN THE PRODUCTS IN QUESTION , WHICH IS VERY LARGE BUT IS MARKEDLY DIVIDED BETWEEN A VERY GREAT NUMBER OF BRANDS , IT CANNOT BE DENIED , REGARD BEING HAD TO ITS ABSOLUTE TURNOVER FIGURES , THAT CONDUCT BY THAT UNDERTAKING SEEKING TO RESTRAIN PARALLEL IMPORTS AND THEREFORE TO PARTITION NATIONAL MARKETS MAY EXERCISE AN INFLUENCE ON THE PATTERN OF TRADE BETWEEN MEMBER STATES IN A WAY CAPABLE OF HINDERING THE ATTAINMENT OF THE OBJECTIVES OF A SINGLE MARKET .

10.THE MERE FACT OF THE IMPORTATION OF GOODS WHICH HAVE BEEN LAWFULLY MARKETED IN ANOTHER MEMBER STATE CANNOT BE CONSIDERED AN UNFAIR COMMERCIAL PRACTICE . PARALLEL IMPORTS FROM OTHER MEMBER STATES CANNOT THEREFORE , BY THEMSELVES , GIVE RISE TO A SITUATION OF LEGITIMATE SELF-PROTECTION JUSTIFYING AN INFRINGEMENT OF THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ) OF THE TREATY .

11.THE NOTIFICATION OF AGREEMENTS IS NOT A FORMALITY IMPOSED ON UNDERTAKINGS BUT AN INDISPENSABLE CONDITION FOR OBTAINING CERTAIN BENEFITS . UNDER THE TERMS OF ARTICLE 15 ( 5 ) ( A ) OF REGULATION NO 17 NO FINE MAY BE IMPOSED IN RESPECT OF ACTS TAKING PLACE AFTER NOTIFICATION , PROVIDED THEY FALL WITHIN THE LIMITS OF THE ACTIVITY DESCRIBED IN THE NOTIFICATION . THAT ADVANTAGE ENJOYED BY AN UNDERTAKING WHICH NOTIFIES AN AGREEMENT OR CONCERTED PRACTICE IS THE COUNTERPART OF THE RISK INCURRED BY THE UNDERTAKING IN ITSELF REPORTING THE AGREEMENT OR CONCERTED PRACTICE . THAT UNDERTAKING IN FACT TAKES THE RISK NOT ONLY OF HAVING THE AGREEMENT OR PRACTICE FOUND TO BE IN BREACH OF ARTICLE 85 ( 1 ) OF THE TREATY AND OF HAVING THE APPLICATION OF SUBPARAGRAPH ( 3 ) REFUSED BUT ALSO OF BEING PUNISHED BY A FINE FOR ITS ACTS PRIOR TO NOTIFICATION . A FORTIORI , AN UNDERTAKING WHICH DID NOT WISH TO RUN THAT RISK CANNOT CLAIM , ON BEING FINED FOR AN INFRINGEMENT IN RESPECT OF AN AGREEMENT WHICH WAS NOT NOTIFIED , THAT THERE WAS A HYPOTHETICAL POSSIBILITY THAT NOTIFICATION MIGHT HAVE LED TO AN EXEMPTION .

12.THE APPLICATION OF ARTICLE 15 ( 1 ) AND ( 2 ) OF REGULATION NO 17 , WHICH EMPOWERS THE COMMISSION TO IMPOSE ON UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS FINES WHERE , INTENTIONALLY OR NEGLIGENTLY , THEY HAVE BEEN GUILTY OF INFRINGEMENTS , IS NOT CONDITIONAL UPON ACTION BY , OR EVEN KNOWLEDGE ON THE PART OF , THE PARTNERS OR PRINCIPAL MANAGERS OF THE UNDERTAKING CONCERNED BUT UPON ACTION BY A PERSON WHO IS AUTHORIZED TO ACT ON BEHALF OF THE UNDERTAKING .

13.RESTRICTIONS ON INTRA-COMMUNITY TRADE IMPOSED BY PUBLIC AUTHORITIES CANNOT JUSTIFY THE IMPLEMENTATION , BY PRIVATE PERSONS , OF CONCERTED PRACTICES INTENDED TO RESTRICT COMPETITION .

14.IN ASSESSING THE GRAVITY OF AN INFRINGEMENT FOR THE PURPOSE OF FIXING THE AMOUNT OF THE FINE , THE COMMISSION MUST TAKE INTO CONSIDERATION NOT ONLY THE PARTICULAR CIRCUMSTANCES OF THE CASE BUT ALSO THE CONTEXT IN WHICH THE INFRINGEMENT OCCURS AND MUST ENSURE THAT ITS ACTION HAS THE NECESSARY DETERRENT EFFECT , ESPECIALLY AS REGARDS THOSE TYPES OF INFRINGEMENT WHICH ARE PARTICULARLY HARMFUL TO THE ATTAINMENT OF THE OBJECTIVES OF THE COMMUNITY .

THE COMMISSION IS RIGHT TO CLASSIFY AS VERY SERIOUS INFRINGEMENTS PROHIBITIONS ON EXPORTS AND IMPORTS SEEKING ARTIFICIALLY TO MAINTAIN PRICE DIFFERENCES BETWEEN THE MARKETS OF THE VARIOUS MEMBER STATES . SUCH PROHIBITIONS JEOPARDIZE THE FREEDOM OF INTRA-COMMUNITY TRADE , WHICH IS A FUNDAMENTAL PRINCIPLE OF THE TREATY , AND THEY PREVENT THE ATTAINMENT OF ONE OF ITS OBJECTIVES , NAMELY THE CREATION OF A SINGLE MARKET .

15.THE FACT THAT THE COMMISSION IN THE PAST IMPOSED FINES OF A CERTAIN LEVEL FOR CERTAIN TYPES OF INFRINGEMENT DOES NOT MEAN THAT IT IS ESTOPPED FROM RAISING THAT LEVEL WITHIN THE LIMITS INDICATED IN REGULATION NO 17 IF THAT IS NECESSARY TO ENSURE THE IMPLEMENTATION OF COMMUNITY COMPETITION POLICY . ON THE CONTRARY , THE PROPER APPLICATION OF THE COMMUNITY COMPETITION RULES REQUIRES THAT THE COMMISSION MAY AT ANY TIME ADJUST THE LEVEL OF FINES TO THE NEEDS OF THAT POLICY .

16.IN ASSESSING THE GRAVITY OF AN INFRINGEMENT REGARD MUST BE HAD TO A LARGE NUMBER OF FACTORS , THE NATURE AND IMPORTANCE OF WHICH VARY ACCORDING TO THE TYPE OF INFRINGEMENT IN QUESTION AND THE PARTICULAR CIRCUMSTANCES OF THE CASE . THOSE FACTORS MAY , DEPENDING ON THE CIRCUMSTANCES , INCLUDE THE VOLUME AND THE VALUE OF THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED AND THE SIZE AND ECONOMIC POWER OF THE UNDERTAKING AND , CONSEQUENTLY , THE INFLUENCE WHICH THE UNDERTAKING WAS ABLE TO EXERT ON THE MARKET .

IT FOLLOWS THAT , ON THE ONE HAND , IT IS PERMISSIBLE , FOR THE PURPOSE OF FIXING THE FINE , TO HAVE REGARD BOTH TO THE TOTAL TURNOVER OF THE UNDERTAKING , WHICH GIVES AN INDICATION , ALBEIT APPROXIMATE AND IMPERFECT , OF THE SIZE OF THE UNDERTAKING AND OF ITS ECONOMIC POWER , AND TO THE PROPORTION OF THAT TURNOVER ACCOUNTED FOR BY THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED , WHICH GIVES AN INDICATION OF THE SCALE OF THE INFRINGEMENT . ON THE OTHER HAND , IT FOLLOWS THAT IT IS IMPORTANT NOT TO CONFER ON ONE OR THE OTHER OF THOSE FIGURES AN IMPORTANCE DISPROPORTIONATE TO THE OTHER FACTORS AND , CONSEQUENTLY , THAT THE FIXING OF AN APPROPRIATE FINE CANNOT BE THE RESULT OF A SIMPLE CALCULATION BASED ON THE TOTAL TURNOVER . THAT IS PARTICULARLY THE CASE WHERE THE GOODS CONCERNED ACCOUNT FOR ONLY A SMALL PART OF THAT FIGURE .

17.IF AN UNDERTAKING HAS PARTICIPATED IN TWO CONCERTED PRACTICES WHICH WERE BOTH DESIGNED TO PREVENT PARALLEL IMPORTS TO A PARTICULAR COUNTRY OF GOODS PRODUCED BY THE SAME FIRM , THE COMMISSION IS ENTITLED TO TREAT THE INFRINGEMENTS AS A SINGLE OFFENCE AND THEREFORE TO IMPOSE A SINGLE FINE .