7.

It is on this basis that it is now necessary to examine whether the clause has the effect of restricting competition and in what way. These effects could arise: with the traders; in the relationship between the producers of the Ruhr and the other producers of the Community; and finally in respect of the relationship of the three agencies inter se. (a) The clause involves a further restriction on competition between traders who wish to be accepted as wholesalers by Geitling, but solely by reason of the quantity required. Whereas 12500 metric tons were sufficient according to the other conditions, 25000 metric tons are now necessary. This additional requirement for the traders is however, made less rigid by the fact that it is not necessary for the 25000 metric tons to come from Geitling, but that half that quantity may be purchased from the other two agencies. Thus the possibility of having this amount taken into account — the only particular element of the clause that can be considered here — does not constitute a new restriction as regards the trader. On the contrary, its effect is to ease a restriction which itself follows from the fact that the tonnage limit has already been increased. (b) It would not appear that the clause affects competition between the producers of the Ruhr in general and the remainder of the producers of the Community. Since in this respect the producers of the Ruhr must be considered in any event as forming a single entity, the possibility of taking into account purchases made from the three agencies cannot alter the position. The most that can be said is that the competitive position of each of the agencies, and thus also of the applicants, vis-à-vis the remaining producers of the Community, is strengthened by this reciprocal arrangement and that normal competition between each agency and its competitors on the Common Market is thus distorted. (c) But the possibility of having this tonnage taken into account has repercussions principally in respect of the relationship between the three selling agencies for Ruhr coal inter se. As the volume of purchases required is not relevant, the requirements of ‘12500 metric tons from Geitling’ and ‘25000 metric tons from the Ruhr’ must not be compared. On the contrary, the particular nature of the possibility only appears when a comparison is made between ‘25000 metric tons from Geitling’ and ‘12500 metric tons from Geitling; 12500 metric tons obtained from other selling agencies for Ruhr coal’. It is only when the second clause is applied instead of the first that a restriction on competition between the three agencies is to be found. This is why the applicants side-step the essence of the problem when they claim that with or without the clause it makes no difference from which of the agencies the excess over 12500 meric tons is purchased. The difference lies rather in the fact that without the clause all that is required is a certain volume of purchases from Geitling and that therefore the question from which agency the purchases are made is far from being of no consequence. The alternative is only offered by the clause at issue in this investigation, one can start by agreeing that acceptance as a wholesaler is a means of competition. The applicants have themselves indicated that as businessmen they are entitled to say to a trader: ‘if you make an effort for my coal, you will get special treatment’. This effort is required of the trader in applying the clause as to ‘25000 metric tons from Geitling’. That requirement is attenuated by the alternative and the possibility of having taken into account: ‘12500 metric tons from Geitling; 12500 metric tons from other selling agencies for Ruhr coal’. As we have seen, that can make the trader's position easier. But what is the significance of this as regards the relationships inter se of the three selling agencies? The only possible significance is that Geitling does not require more than half the effort to be put into its own products and that it credits the trader with the trouble he has taken for other selling agencies for Ruhr coal. Thus Geitling partially gives up a means of competition that it claims for itself, and limits the sales competition of its own products in favour of the two other agencies. The applicants require that their wholesalers must order 25000 metric tons of Ruhr coal. They claim that they use every possible means of ensuring that the 25000 metric tons are obtained from Geitling. But by reason of the taking into account of purchases, they partially give up one of those means. That suffices to distort competition between the three agencies, without its mattering whether competition remains possible in other respects. The applicants have themselves said during the oral procedure that the clause must first enable Ruhr coal to break in to the market. Thereafter, the competition between the three agencies will itself intensify. But this is to say clearly that for reasons of common interests, the three agencies limit competition to the sale of their products and thus limit competition between themselves, and that they thus want above all to act as a single entity.