Keywords

Summary



Keywords

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1 . COMPETITION - COMMUNITY RULES - UNDERTAKINGS - INFRINGEMENTS OF ARTICLES 85 OR 86 OF THE EEC TREATY - MORE THAN ONE INFRINGEMENT - SINGLE DECISION OF THE COMMISSION - ADMISSIBILITY

2 . MEASURE TAKEN BY AN INSTITUTION - DECISION - NOTIFICATION - RULES GOVERNING THE LANGUAGES OF THE INSTITUTIONS OF THE COMMUNITY

( EEC TREATY, ARTICLE 191 : REGULATION NO 1, ARTICLE 3 )

3 . COMPETITION - COMMUNITY RULES - UNDERTAKINGS - INFRINGEMENTS OF ARTICLE 85 OR 86 OF THE EEC TREATY

4 . COMPETITION - CARTELS - CONCERTED PRACTICE - CONCEPT

( EEC TREATY, ARTICLE 85 )

5 . COMPETITION - CARTELS - PROHIBITION - SCOPE

( EEC TREATY, ARTICLE 85 )

6 . COMPETITION - COMMUNITY RULES - UNDERTAKING - TRADE REPRESENTATIVE CONTRACT - INCOMPATIBILITY WITH ARTICLE 85 OR 86 OF THE EEC TREATY - TERMS

7 . COMPETITION - DOMINANT POSITION ON THE MARKET - SUBSTANTIAL PART OF THE COMMON MARKET - CONCEPT

( EEC TREATY, ARTICLE 86 )

8 . COMPETITION - DOMINANT POSITION ON THE MARKET - APPLICATION OF DISSIMILAR CONDITIONS TO EQUIVALENT TRANSACTIONS - CONCEPT

( EEC TREATY, ARTICLE 86 )

9 . COMPETITION - DOMINANT POSITION ON THE MARKET - LIMITATION OF MARKETS TO THE PREJUDICE OF CONSUMERS - CONCEPT

( EEC TREATY, ARTICLE 86 )

10 . COMPETITION - COMMUNITY RULES - UNDERTAKINGS - INFRINGEMENTS OF ARTICLE 85 OR 86 OF THE EEC TREATY - EVIDENCE - CORRESPONDENCE BETWEEN THIRD PARTIES

11 . COMPETITION - COMMUNITY RULES - UNDERTAKING - INFRINGEMENTS OF ARTICLE 85 OR 86 OF THE EEC TREATY - FINE - FIXING THE AMOUNT OF THE FINE - PROCEDURE

( REGULATION NO 17, ARTICLE 15 )

12 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - SALES FOR DENATURING - PRICES - CONCERTED PRACTICES - EFFECTS

( EEC TREATY, ARTICLE 39; FIRST SENTENCE OF ARTICLE 2 ( 1 ) OF REGULATION NO 26 )

13 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - DELIVERY TO PURCHASERS OTHER THAN INTERVENTION AGENCIES - INTERVENTION PRICE - GUARANTEE - ABSENCE

( REGULATION NO 1009/67, ARTICLE 9 )

14 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - PRICES - EXPORT REFUND - DUTIES OF COMMUNITY INSTITUTIONS - ABSENCE

( REGULATION NO 1009/67, ARTICLE 17 )

Summary

1 . THERE IS NO REASON AT ALL WHY THE COMMISSION SHOULD NOT MAKE A SINGLE DECISION COVERING SEVERAL INFRINGEMENTS OF ARTICLES 85 OR 86 OF THE EEC TREATY, EVEN IF SOME OF THE UNDERTAKINGS TO WHICH IT IS ADDRESSED ARE UNCONNECTED WITH SOME OF THESE INFRINGEMENTS, PROVIDED THAT THE DECISION PERMITS EACH ADDRESSEE TO OBTAIN A CLEAR PICTURE OF THE COMPLAINTS MADE AGAINST IT .

2 . COMMUNITY INSTITUTIONS ARE UNDER A DUTY TO SEND AN UNDERTAKING TO WHICH A DECISION IS ADDRESSED A COPY OF THAT DECISION IN THE LANGUAGE OF THE MEMBER STATE TO WHICH THIS UNDERTAKING BELONGS .

IF THIS REQUIREMENT IS FULFILLED, THE FACT THAT THE COMMISSION ALSO SENT AN UNDERTAKING COPIES OF THE DECISION IN OTHER LANGUAGES IS NOT SUCH AS TO CALL INTO QUESTION ITS VALIDITY .

3 . FOR THE PURPOSE OF DETERMINING THE PERSONS TO WHOM A DECISION, WHICH FINDS THAT THERE HAS BEEN AN INFRINGEMENT OF ARTICLES 85 OR 86 OF THE TREATY, APPLIES, ONLY THE OPERATIVE PART OF THIS DECISION MUST BE CONSIDERED, PROVIDED THAT IT IS NOT OPEN TO MORE THAN ONE INTERPRETATION .

4 . THE CONCEPT OF A 'CONCERTED PRACTICE' REFERS TO A FORM OF COORDINATION BETWEEN UNDERTAKINGS, WHICH, WITHOUT HAVING BEEN TAKEN TO THE STAGE WHERE AN AGREEMENT PROPERLY SO-CALLED HAS BEEN CONCLUDED, KNOWINGLY SUBSTITUTES FOR THE RISKS OF COMPETITION, PRACTICAL COOPERATION BETWEEN THEM WHICH LEADS TO CONDITIONS OF COMPETITION WHICH DO NOT CORRESPOND TO THE NORMAL CONDITIONS OF THE MARKET, HAVING REGARD TO THE NATURE OF THE PRODUCTS, THE IMPORTANCE AND NUMBER OF THE UNDERTAKINGS AS WELL AS THE SIZE AND NATURE OF THE SAID MARKET .

SUCH PRACTICAL COOPERATION AMOUNTS TO A CONCERTED PRACTICE, PARTICULARLY IF IT ENABLES THE PERSONS CONCERNED TO CONSOLIDATE ESTABLISHED POSITIONS TO THE DETRIMENT OF EFFECTIVE FREEDOM OF MOVEMENT OF THE PRODUCTS IN THE COMMON MARKET AND OF THE FREEDOM OF CONSUMERS TO CHOOSE THEIR SUPPLIERS .

THESE CRITERIA OF 'COORDINATION' AND 'COOPERATION' LAID DOWN BY THE CASE-LAW OF THE COURT, WHICH IN NO WAY REQUIRE THE WORKING OUT OF AN ACTUAL PLAN, MUST BE UNDERSTOOD IN THE LIGHT OF THE CONCEPT INHERENT IN THE PROVISIONS OF THE TREATY RELATING TO COMPETITION THAT EACH ECONOMIC OPERATOR MUST DETERMINE INDEPENDENTLY THE POLICY WHICH HE INTENDS TO ADOPT ON THE COMMON MARKET INCLUDING THE CHOICE OF THE PERSONS AND UNDERTAKINGS TO WHICH HE MAKES OFFERS OR SELLS .

ALTHOUGH IT IS CORRECT TO SAY THAT THIS REQUIREMENT OF INDEPENDENCE DOES NOT DEPRIVE ECONOMIC OPERATORS OF THE RIGHT TO ADAPT THEMSELVES INTELLIGENTLY TO THE EXISTING AND ANTICIPATED CONDUCT OF THEIR COMPETITORS, IT DOES HOWEVER STRICTLY PRECLUDE ANY DIRECT OR INDIRECT CONTACT BETWEEN SUCH OPERATORS, THE OBJECT OR EFFECT WHEREOF IS EITHER TO INFLUENCE THE CONDUCT ON THE MARKET OF AN ACTUAL OR POTENTIAL COMPETITOR OR TO DISCLOSE TO SUCH A COMPETITOR THE COURSE OF CONDUCT WHICH THEY THEMSELVES HAVE DECIDED TO ADOPT OR CONTEMPLATE ADOPTING ON THE MARKET .

IF AN ECONOMIC OPERATOR ACCEPTS THE COMPLAINTS MADE TO HIM BY ANOTHER OPERATOR IN CONNEXION WITH THE COMPETITION TO WHICH THE PRODUCTS MANUFACTURED BY THE FORMER OPERATOR EXPOSE THE LATTER, THE CONDUCT OF THE OPERATORS CONCERNED AMOUNTS TO A CONCERTED PRACTICE .

THE FACT THAT A VENDOR ALIGNS HIS PRICE ON THE HIGHEST PRICE CHARGED BY A COMPETITOR IS NOT NECESSARILY EVIDENCE OF A CONCERTED PRACTICE BUT MAY BE EXPLAINED BY AN ATTEMPT TO OBTAIN THE MAXIMUM PROFIT .

5 . WHEN ARTICLE 85 ( 1 ) NOT ONLY PROHIBITS AGREEMENTS, DECISIONS OR PRACTICES HAVING REGARD TO THEIR OBJECT BUT ALSO TO THEIR ACTUAL EFFECTS IN THE FIELD OF COMPETITION, IT IMPLIES THAT THESE EFFECTS MUST BE CONSIDERED IN THE CONTEXT IN WHICH THEY TAKE PLACE, THAT IS TO SAY IN THEIR SURROUNDING ECONOMIC AND LEGAL CIRCUMSTANCES WITHIN WHICH THEY MAY, TOGETHER WITH OTHER FACTORS, HAVE A COMULATIVE EFFECT ON COMPETITION .

IN ORDER TO DETERMINE WHETHER AN AGREEMENT IS CAUGHT BY ARTICLE 85 ( 1 ) IT CANNOT THEREFORE BE SEVERED FROM THIS CONTEXT; IN PARTICULAR, THE EXISTENCE OF SIMILAR CONTRACTS MAY BE TAKEN INTO CONSIDERATION TO THE EXTENT TO WHICH THESE KINDS OF CONTRACTS ARE IN GENERAL LIKELY TO RESTRICT FREE TRADE .

6 . ( A ) THE FACT THAT A TRADE REPRESENTATIVE CONTRACT, WHICH IMPOSES UPON THE REPRESENTATIVE A PROHIBITION OF COMPETITION, COMPLIES WITH THE NATIONAL LAW GOVERNING THIS CONTRACT OR THAT THIS LAW EVEN IMPOSES A SIMILAR PROHIBITION IS NOT DETERMINATIVE WHEN CONSIDERING WHETHER SUCH A CONTRACT IS NOT CAUGHT BY ARTICLE 85 OR 86 .

( B ) NEVERTHELESS IF AN AGENT SELLS IN THE NAME AND FOR THE ACCOUNT OF A PRODUCER OR ASSOCIATION OF PRODUCERS HE MAY IN PRINCIPLE BE TREATED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING, WHO MUST CARRY OUT HIS PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING .

IN THESE CIRCUMSTANCES INCOMPATIBILITY WITH ARTICLE 85 OR ARTICLE 86 IS NOT SIMPLY DUE TO THE FACT THAT THE PRINCIPAL FORBIDS SUCH AN AUXILIARY TO TRADE WITHOUT HIS CONSENT IN PRODUCTS WHICH MIGHT COMPETE WITH HIS OWN PRODUCTS .

( C ) AS PURCHASES FROM A 'TRADE REPRESENTATIVE' ARE IN FACT DIRECT PURCHASES FROM HIS PRINCIPAL THE FACT THAT THE LATTER FORCED WHOLESALERS TO APPLY TO ITS REPRESENTATIVES AND NOT TO ITSELF CAN NEITHER BE AN ABUSE NOR EVIDENCE THEREOF .

( D ) EVEN IF AN AGENT IS CALLED A 'TRADE REPRESENTATIVE' UNDER THE TERMS OF THE AGREEMENT WHICH HE HAS ENTERED INTO WITH HIS PRINCIPAL, HE CANNOT BE REGARDED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF HIS PRINCIPAL'S UNDERTAKING :

1 . IF THE SAID AGREEMENT CONFERS UPON THE AGENT OR ALLOWS HIM TO PERFORM DUTIES WHICH FROM AN ECONOMIC POINT OF VIEW ARE APPROXIMATELY THE SAME AS THOSE CARRIED OUT BY AN INDEPENDENT DEALER, BECAUSE THEY PROVIDE FOR THE AGENT ACCEPTING THE FINANCIAL RISKS OF THE SALES OR THE PERFORMANCE OF CONTRACTS ENTERED INTO WITH THIRD PARTIES,

OR

2 . IF THE AGENT IS A LARGE BUSINESS HOUSE WHICH AT THE SAME TIME AS IT DISTRIBUTES PRODUCTS FOR THE ACCOUNT OF THE PRINCIPAL UNDERTAKES AS AN INDEPENDENT DEALER A VERY CONSIDERABLE AMOUNT OF BUSINESS ON THE MARKET FOR THE PRODUCT IN QUESTION .

THEREFORE A CLAUSE PROHIBITING COMPETITION ENTERED INTO BETWEEN SUCH AN AGENT AND HIS PRINCIPAL MAY BE AN AGREEMENT BETWEEN UNDERTAKINGS WHICH IS PROHIBITED UNDER ARTICLE 85 .

IF SUCH A CLAUSE IS INSERTED AT THE INSISTENCE OF AN UNDERTAKING OCCUPYING A DOMINANT POSITION, IT MAY IN THE CIRCUMSTANCES REFERRED TO IN 1 ABOVE BE AN ABUSE UNDER ARTICLE 86 .

( E ) CLAUSES PROHIBITING COMPETITION IMPOSED BY AN UNDERTAKING OCCUPYING A DOMINANT POSITION ON TRADE REPRESENTATIVES MAY CONSTITUTE AN ABUSE, IF FOREIGN COMPETITORS FIND THAT THERE ARE NO INDEPENDENT OPERATORS WHO CAN MARKET THE PRODUCT IN QUESTION ON A SUFFICIENTLY LARGE SCALE, AND ARE IN PRACTICE FORCED TO APPLY TO THE SAID UNDERTAKING'S TRADE REPRESENTATIVES IF THEY WISH TO SELL THIS PRODUCT IN THE LATTER'S SALES TERRITORY, OR IF THE SAID UNDERTAKING ENLARGES THE SCOPE OF THE PROHIBITION OF COMPETITION TO SUCH AN EXTENT THAT IT NO LONGER CORRESPONDS TO THE NATURE OF THE LEGAL AND ECONOMIC RELATIONSHIP IN QUESTION .

7 . FOR THE PURPOSE OF DETERMINING WHETHER A SPECIFIC TERRITORY IS LARGE ENOUGH TO AMOUNT TO 'A SUBSTANTIAL PART OF THE COMMON MARKET' WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY THE PATTERN AND VOLUME OF THE PRODUCTION AND CONSUMPTION OF THE SAID PRODUCT AS WELL AS THE HABITS AND ECONOMIC OPPORTUNITIES OF VENDORS AND PURCHASERS MUST BE CONSIDERED .

ARTICLE 86 OF THE TREATY REFERS IN EACH CASE TO THE POSITION OCCUPIED BY THE UNDERTAKING CONCERNED ON THE COMMON MARKET AS THE TIME WHEN THE LATTER ACTED IN A WAY WHICH IS ALLEGED TO AMOUNT TO AN ABUSE .

IN ORDER TO DETERMINE IN THE CASE OF A COMPLAINT MADE AGAINST AN UNDERTAKING UNDER THIS ARTICLE WHETHER A SPECIFIC AREA IS A SUBSTANTIAL PART OF THE COMMON MARKET IT IS THEREFORE ONLY NECESSARY TO COMPARE THE STATISTICAL DATA RELATING TO THIS AREA WITH THE CORRESPONDING DATA RELATING TO THE COMMON MARKET AS IT WAS WHEN THE FACTS GIVING RISE TO THESE PROCEEDINGS EXISTED; ANY SUBSEQUENT ENLARGEMENT OF THE COMMON MARKET CANNOT BE TAKEN INTO CONSIDERATION .

8 . IF AN ECONOMIC OPERATOR ADOPTS A SYSTEM OF LOYALTY REBATES LEADING TO THE APPLICATION OF DIFFERENT NET PRICES TO TWO CUSTOMERS WHO BOUGHT THE SAME AMOUNT FROM THE SAID OPERATOR IF ONE OF THEM PURCHASED FROM ANOTHER PRODUCER AS WELL, SUCH A SYSTEM AMOUNTS TO 'APPLYING DISSIMILAR CONDITIONS TO EQUIVALENT TRANSACTIONS WITH OTHER TRADING PARTIES' WITHIN THE MEANING OF ARTICLE 86 ( C ).

9 . IF A PRODUCER ADOPTS A SYSTEM OF LOYALTY REBATES WHICH GIVES PRODUCERS HAVING THEIR PLACES OF BUSINESS IN OTHER MEMBER STATES NO CHANCE OR RESTRICTS THEIR OPPORTUNITIES OF COMPETING WITH GOODS SOLD BY THE SAID PRODUCER, SUCH A SYSTEM AMOUNTS TO 'LIMITING MARKETS TO THE PREJUDICE OF CONSUMERS' WITHIN THE MEANING OF ARTICLE 86 ( B ).

10 . THERE IS NO REASON WHY THE COMMISSION AND THE COURT SHOULD NOT ACCEPT AS EVIDENCE OF AN UNDERTAKING'S CONDUCT CORRESPONDENCE EXCHANGED BETWEEN THIRD PARTIES, PROVIDED THAT THE CONTENT THEREOF IS CREDIBLE TO THE EXTENT TO WHICH IT REFERS TO THE SAID CONDUCT .

11 . FOR THE PURPOSE OF FIXING THE AMOUNT OF THE FINE UNDER ARTICLE 15 ( 2 ) OF REGULATION NO 17 REGARD SHALL BE HAD TO THE GRAVITY AND DURATION OF THE INFRINGEMENT, SO THAT PARTICULAR ACCOUNT HAS TO BE TAKEN OF THE LEGISLATIVE BACKGROUND AND ECONOMIC CONTEXT OF THE CONDUCT TO WHICH EXCEPTION IS TAKEN, THE NATURE OF THE RESTRICTIONS OF COMPETITION AS WELL AS THE NUMBER AND SIZE OF THE UNDERTAKINGS CONCERNED .

12 . IF A PRODUCER, ACTING INDEPENDENTLY, MAY BE JUSTIFIED IN ENDEAVOURING TO PREVENT THE SUGAR, WHICH HE HAS SOLD AT A RELATIVELY LOW PRICE FOR DENATURING, FROM BEING SOLD AT TOO LOW A PRICE ON THE MARKET FOR HUMAN CONSUMPTION, THE OBJECTIVES OF ARTICLE 39 OF THE TREATY DO NOT HOWEVER IN ANY WAY REQUIRE THAT HE PURSUES THIS AIM BY MEANS OF CONCERTED PRACTICES .

NEVERTHELESS, IF HE DOES SO, THE CONCERTED PRACTICES CANNOT COME WITHIN THE SCOPE OF THE SECOND EXCEPTION SPECIFIED IN THE FIRST SENTENCE OF ARTICLE 2 ( 1 ) OF REGULATION NO 26 .

13 . THERE IS NOTHING IN REGULATION NO 1009/67 TO JUSTIFY THE ASSERTION THAT THIS PRICE IS ALSO 'GUARANTEED' TO PRODUCERS FOR SUGAR WHICH THEY SUPPLY TO OTHER PRODUCERS OTHER THAN THE INTERVENTION AGENCIES REFERRED TO IN ARTICLE 9 OF THE SAID REGULATION .

14 . IT FOLLOWS FROM THE WORDING OF ARTICLE 17 ( 1 ) OF REGULATION NO 1009/67 THAT COMMUNITY INSTITUTIONS ARE NOT REQUIRED TO INTRODUCE A SYSTEM OF EXPORT REFUNDS AND STILL LESS TO FIX THE AMOUNT THEREOF IN SUCH A WAY THAT IF SUGAR PRODUCERS EXPORT THEY OBTAIN THIS INTERVENTION PRICE .