Judgment of the Court of 16 December 1975. - Coöperatieve Vereniging "Suiker Unie" UA and others v Commission of the European Communities. - Joined cases 40 to 48, 50, 54 to 56, 111, 113 and 114-73.



European Court reports 1975 Page 01663

Greek special edition Page 00507

Portuguese special edition Page 00563

Spanish special edition Page 00451



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



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 .

Parties

IN JOINED CASES

( 1 ) 40/73 : COOPERATIEVE VERENIGING 'SUIKER UNIE' UA, HAVING ITS REGISTERED OFFICE AT ROTTERDAM, REPRESENTED BY ITS BOARD OF DIRECTORS, ASSISTED BY F . SALOMONSON, ADVOCATE OF THE DORDRECHT BAR, AND P . VOGELENZANG, ADVOCATE AT THE ROTTERDAM BAR,

( 2 ) 41/73 : SOCIETE ANONYME GENERALE SUCRIERE, HAVING ITS REGISTERED OFFICE AT PARIS, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, ANTOINE BOUCHON, ASSISTED BY HENRI RAMBAUD, LOYRETTE, VOILLEMOT AND DEMOYEN, ADVOCATES AT THE COUR D'APPEL, PARIS,

( 3 ) 42/73 : NV CENTRALE SUIKER MAATSCHAPPIJ, HAVING ITS REGISTERED OFFICE AT AMSTERDAM, REPRESENTED BY ITS MANAGERS, W . G . A . LAMMERS AND G . M . L . VAN LOON, ASSISTED BY R . A . MORZER BRUYNS, ADVOCATE AT THE GERECHTSHOF, AMSTERDAM AND R . C . GISOLF, ADVOCATE AT THE ARRONDISSEMENTSRECHTSBANK, AMSTERDAM,

( 4 ) 43/73 : SOCIETE DES RAFFINERIES ET SUCRERIES SAY, WHICH IN THE COURSE OF THE PROCEEDINGS BECAME SOCIETE BEGHIN-SAY, A COMPANY LIMITED BY SHARES HAVING ITS REGISTERED OFFICE AT PARIS, REPRESENTED BY ITS GENERAL MANAGER, JEAN BERNARD, ASSISTED BY BERNARD DU GRANRUT, ADVOCATE AT THE COUR D'APPEL, PARIS,

( 5 ) 44/73 : SOCIETE F . BEGHIN, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE AT THUMERIES ( NORD ), FRANCE, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, FERDINAND BEGHIN, ASSISTED BY RENE BONDOUX, ADVOCATE AT THE COUR D'APPEL, PARIS,

THE LAST TWO APPLICANTS MERGED DURING THESE PROCEEDINGS AND BECAME THE BEGHIN-SAY COMPANY, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, FERDINAND BEGHIN, ASSISTED BY THE ADVOCATES MENTIONED IN 4 ) AND 5 ) ABOVE;

( 6 ) 45/73 : ZUCCHERIFICIO DEL VOLANO SPA, HAVING ITS REGISTERED OFFICE AT GENOA, REPRESENTED BY ITS LEGAL REPRESENTATIVE, COMMENDATORE MARIO MARALDI, ASSISTED BY MASSIMO SEVERO GIANNINI AND ROSARIO NICOLO, PROFESSORS, ADVOCATES OF THE ROME BAR,

( 7 ) 46/73 : SOCIETA AGRICOLA INDUSTRIALE EMILIANA - AIE, HAVING ITS REGISTERED OFFICE AT BOLOGNA, REPRESENTED BY ITS LEGAL REPRESENTATIVE, COMMENDATORE MARIO MARALDI, ASSISTED BY MASSIMO SEVERO GIANNINI AND ROSARIO NICOLO, PROFESSORS, ADVOCATES AT THE ROME BAR,

( 8 ) 47/73 : RAFFINERIE TIRLEMONTOISE, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE AT BRUSSELS, REPRESENTED BY ITS BOARD OF DIRECTORS, ASSISTED BY G . VAN HECKE, PROFESSOR, ADVOCATE AT THE COUR DE CASSATION OF BELGIUM, AND A . DERINGER, ADVOCATE AT THE OBERLANDESGERICHT, COLOGNE,

( 9 ) 48/73 : SOCIETE ANONYME SUCRES ET DENREES, HAVING ITS REGISTERED OFFICE AT PARIS, REPRESENTED BY VARSANO, ROBOH AND CORIAT, MEMBERS OF ITS BOARD OF DIRECTORS, ASSISTED BY JACQUES LASSIER, ADVOCATE OF THE COUR DE PARIS, AND JEAN-DENIS BREDIN, ADVOCATE AT THE COUR D'APPEL, PARIS,

( 10 ) 50/73 : SOCIETA SADAM SPA HAVING ITS REGISTERED OFFICE AT BOLOGNA, REPRESENTED BY ITS CHAIRMAN, DR . ANGELO MACCAFERRI, ASSISTED BY GIORGIO BERNINI, PROFESSOR, ADVOCATE AT THE BOLOGNA BAR,

( 11 ) 54/73 : SUEDDEUTSCHE ZUCKER-AKTIENGESELLSCHAFT, HAVING ITS REGISTERED OFFICE AT MANNHEIM, REPRESENTED BY ITS BOARD OF DIRECTORS, ASSISTED BY GLEISS, LUTZ, HOOTZ AND HIRSCH, DOCTORS OF LAW, ADVOCATES AT THE LANDGERICHT, STUTTGART AND THEIR PARTNERS,

( 12 ) 55/73 : SUEDZUCKER-VERKAUF GMBH, HAVING ITS REGISTERED OFFICE AT OBERURSEL ( GERMANY ), REPRESENTED BY ITS MANAGERS, HEINZ BRICK AND HORSTMAR STAUBER, DOCTORS OF LAW, ASSISTED BY GLEISS, LUTZ, HOOTZ AND HIRSCH, DOCTORS OF LAW, ADVOCATES AT THE LANDGERICHT, STUTTGART, AND THEIR PARTNERS,

( 13 ) 56/73 : FIRMA PFEIFER UND LANGEN, HAVING ITS REGISTERED OFFICE AT COLOGNE, REPRESENTED BY ITS PARTNERS, DR HELMUT BOERNER AND JOACHIM PFEIFER, ASSISTED BY DR WERNER VON SIMSON, PROFESSOR AT THE UNIVERSITY OF FRIBOURG-EN-BRISGAU, AND DR FERDINAND HERMANNS, ADVOCATE AT THE AMTSGERICHT AND LANDGERICHT, COLOGNE,

( 14 ) 111/73 : CAVARZERE PRODUZIONI INDUSTRIALI SPA, HAVING ITS REGISTERED OFFICE AT PADUA, REPRESENTED BY ITS GENERAL MANAGER, DR LEONARDO MONTESI, ASSISTED BY GIUSEPPE CELONA, ADVOCATE AT THE CORTE D'APPELLO, MILAN AND AT THE CORTE DI CASSAZIONE, ITALY,

( 15 ) 113/73 : SOCIETA ITALIANA PER L'INDUSTRIA DEGLI ZUCCHERI SPA, HAVING ITS REGISTERED OFFICE AT ROME, REPRESENTED BY ITS MANAGERS, DR ALDO DURANTE AND ATTILIO LERCARI, ASSISTED BY MASSIMO MEDINA AND CORRADO MEDINA, PROFESSOR, ADVOCATES AT THE COUR D'APPEL, GENOA AND THE CORTE DI CASSAZIONE, ITALY,

( 16 ) 114/73 : 'ERIDANIA' ZUCCHERIFICI NAZIONALI SPA, HAVING ITS REGISTERED OFFICE AT GENOA, REPRESENTED BY ITS MANAGING DIRECTOR AND LEGAL REPRESENTATIVE, PROFESSOR GIUSEPPE DE ANDRE, ASSISTED BY ANTONIO SORRENTINO, ADVOCATE AT THE ROME BAR AND MAURO DE ANDRE, ADVOCATE AT THE CHIAVARI BAR,

WITH THE FOLLOWING ADDRESSES FOR SERVICE IN LUXEMBOURG :

- THE APPLICANTS IN CASES 40/73, 43/73, 44/73, 47/73, 48/73, 50/73 AND 114/73 : AT THE CHAMBERS OF ERNEST ARENDT, CASE POSTALE 39;

- THE APPLICANTS IN CASES 41/73, 54/73 AND 55/73 : AT THE CHAMBERS OF GEORGES REUTER, 1 AVENUE DE L'ARSENAL;

- THE APPLICANTS IN CASES 42/73, 45/73 AND 46/73 : AT THE CHAMBERS OF ALEX BONN, 22 COTE D'EICH;

- THE APPLICANT IN CASE 56/73 : AT THE OFFICE OF ANDRE ROBERT, DOCTOR OF LAW, 13 RUE JOSEPH TOCKERT;

- THE APPLICANT IN CASE 111/73 : AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE-II;

- THE APPLICANT IN CASE 113/73 : AT THE CHAMBERS OF LOULOU BEISSEL-HEYARD, 47 RUE DES GLACIS; APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, IN BRUSSELS, REPRESENTED BY ITS LEGAL ADVISERS, DOCTORS BASTIAAN VEN DER ESCH, ERICH ZIMMERMANN, ANTONIO MARCHINI CAMIA AND JEAN-PIERRE DUBOIS, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF PIERRE LAMOUREUX, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

SUPPORTED IN CASES 41/73, 43 TO 48/73, 50/73, 111/73 AND 114/73, TO THE EXTENT TO WHICH THEY RELATE TO THE COMPLAINT OF CONCERTED PRACTICES HAVING AS THEIR OBJECT THE PROTECTION OF THE ITALIAN MARKET, BY :

UNIONE NAZIONALE CONSUMATORI, HAVING ITS REGISTERED OFFICE AT ROME, REPRESENTED BY ITS CHAIRMAN, ODDONE FANTINI, AND ITS SECRETARY-GENERAL, VINCENZO DONA, ASSISTED BY GIOVANNI MARIA UBERTAZZI AND FAUSTO CAPELLI, ADVOCATES AT THE MILAN BAR, WITH AN ADDRESS FOR SERVICE AT THE OFFICES OF LOUIS SCHILTZ, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, INTERVENER,

Subject of the case

APPLICATIONS FOR THE ANNULMENT - AND IN CERTAIN CASES APPLICATIONS IN THE ALTERNATIVE FOR RECTIFICATION - OF THE DECISION OF THE COMMISSION NO COM ( 72 ) 1600 'RELATING TO PROCEEDINGS UNDER ARTICLES 85 AND 86 OF THE EEC TREATY ( IV/26.918 - EUROPEAN SUGAR INDUSTRY )', OF 2 JANUARY 1973 ( OJ L 140, P . 17 ET SEQ .),

Grounds

GENERAL

I

1 THE SUBJECT-MATTER OF THE PRESENT APPLICATIONS IS COMMISSION DECISION NO COM ( 72 ) 1600 OF 2 JANUARY 1973 WHICH WAS ADDRESSED AND NOTIFIED TO THE APPLICANTS AND TO OTHER UNDERTAKINGS AS WELL AND PUBLISHED AT A LATER DATE IN OJ L 140 OF 26 . 5 . 1973, PP . 17 TO 48, TO WHICH THE QUOTATIONS IN THIS JUDGMENT REFER .

2 ARTICLE 1 OF THE DECISION MAKES NINE COMPLAINTS SPREAD OVER THE 1968/69 TO 1971/72 SUGAR MANUFACTURING YEARS RELATING EACH TIME TO ONE OR MORE OF THE BEFOREMENTIONED UNDERTAKINGS . THEY TOGETHER BLAME EACH OF THE LATTER UNDERTAKINGS FOR HAVING COMMITTED ONE OR MORE INFRINGEMENTS OF ARTICLE 85 OF THE EEC TREATY, OF ARTICLE 86 THEREOF OR OF BOTH OF THE SAID ARTICLES .

3 SUBPARAGRAPHS 1 TO 4 OF THE SAID ARTICLE 1 ( 1 ) REFER TO FOUR CONCERTED PRACTICES WHICH HAD AS THEIR OBJECT AND EFFECT, IN BREACH OF ARTICLE 85, THE PROTECTION OF THE SUGAR MARKETS OF ITALY, THE NETHERLANDS, THE WESTERN AND SOUTHERN PARTS OF GERMANY RESPECTIVELY .

4 PARAGRAPH 2 OF THIS ARTICLE STATES THAT 'IN THE CONTEXT OF THE ABOVEMENTIONED CONCERTED PRACTICES' THE COMMISSION FOUND THAT CERTAIN 'MEASURES CONSTITUTE IN THEMSELVES INFRINGEMENTS OF ARTICLES 85 AND 86 '.

5 PARAGRAPH 3 OF ARTICLE 1 FINDS THAT THE UNDERTAKINGS TO WHICH IT REFERS, IN BREACH OF ARTICLE 85, ENGAGED IN CONCERTED ACTIONS, AT THE TIME OF THE INVITATIONS TO TENDER FOR REFUNDS ON EXPORTS TO THIRD COUNTRIES, IN CONNEXION WITH THE AMOUNT OF THE REFUNDS FOR WHICH APPLICATIONS WERE MADE AND ALSO THE QUANTITIES WHICH WERE OFFERED .

6 ARTICLE 2 REQUIRES THE UNDERTAKINGS TO WHICH THE DECISION IS ADDRESSED TO 'PUT AN END IMMEDIATELY TO THE INFRINGEMENTS FOUND AS AFORESAID '.

7 ARTICLE 3 IMPOSES FINES RANGING FROM 100 000 TO 1 500 000 U.A . ON EACH OF THE APPLICANTS, WHEREAS THE OTHER UNDERTAKINGS REFERRED TO IN THE DECISION HAVE NOT BEEN FINED .

8 FINALLY ARTICLE 4 GIVES THE NAMES OF THE UNDERTAKINGS TO WHICH THE DECISION WAS ADDRESSED .

9 EACH OF THE APPLICANTS BY LODGING APPLICATIONS AT THE COURT REGISTRY BETWEEN 12 AND 23 MARCH 1973 BROUGHT AN ACTION MAINLY FOR THE ANNULMENT OF THE CONTESTED DECISION SO FAR AS IT AFFECTED EACH OF THEM .

10 IF THE COURT SHOULD CONFIRM ARTICLES 1 AND 2 OF THE DECISION, SOME OF THE APPLICANTS SUBMIT THAT IN ANY EVENT THE FINES IMPOSED ON THEM BY ARTICLE 3 SHOULD BE CANCELLED OR AT LEAST REDUCED .

11 BECAUSE THESE CASES ARE RELATED IT IS ADVISABLE THAT FOR THE PURPOSE OF THE JUDGMENT THEY BE DEALT WITH JOINTLY .

II

12 BEFORE DEALING WITH EACH OF THE NINE COMPLAINTS SEPARATELY IT IS ADVISABLE TO CONSIDER A GENERAL QUESTION, NAMELY WHETHER, AS SEVERAL APPLICANTS ASSERT, THE COMMON ORGANIZATION OF THE SUGAR MARKET IS ARRANGED IN SUCH A WAY THAT IT ELIMINATES ANY EFFECTIVE COMPETITION .

13 THE PROVISIONS RELATING TO THIS ORGANIZATION PROVIDE IN PARTICULAR FOR THE FIXING OF A MINIMUM PRICE TO BE PAID BY SUGAR MANUFACTURERS FOR THE PURCHASE OF SUGAR BEET, A THRESHOLD PRICE, A TARGET PRICE AND INTERVENTION PRICES AT WHICH NATIONAL AGENCIES HAVE TO BUY THE SUGAR WHICH THEY ARE OFFERED, THE COLLECTION OF AN IMPORT LEVY AND THE GRANT OF EXPORT REFUNDS, OF DENATURING PREMIUMS AND, FOR THE CHEMICAL INDUSTRY, REFUNDS TO PRODUCERS .

14 THE COMMON ORGANIZATION OF THE SUGAR MARKET UNLIKE THOSE OF THE OTHER AGRICULTURAL MARKETS ALSO PROVIDES THAT EACH MEMBER STATE SHALL FIX, ON THE BASIS OF THE QUANTITY ALLOCATED TO IT FOR EACH FACTORY OR UNDERTAKING PRODUCING SUGAR IN ITS TERRITORY, A BASIC QUOTA AND A MAXIMUM QUOTA, IT BEING UNDERSTOOD, ON THE ONE HAND, THAT MEMBER STATES SHALL COLLECT FROM THE MANUFACTURER A PRODUCTION LEVY ON SUGAR WHICH IS OUTSIDE THE BASIC QUOTA BUT WITHIN THE MAXIMUM QUOTA AND, ON THE OTHER HAND, THAT THE QUANTITY OF SUGAR IN EXCESS OF THE MAXIMUM QUOTA SHALL NOT BE DISPOSED OF ON THE DOMESTIC MARKET .

15 FROM THE ECONOMIC POINT OF VIEW THE MAIN FEATURES OF THE SUGAR MARKET ARE THAT SUGAR IS FOR THE MOST PART A HOMOGENEOUS AND STANDARDIZED PRODUCT, THAT TRANSPORT COSTS OF SUGAR ARE RELATIVELY HIGH AND THAT FREIGHT RATES MAKE THE TRANSPORTATION OF SUGAR BEET OVER LONG DISTANCES OUT OF THE QUESTION .

16 IT IS BEYOND DOUBT THAT, AS THE BEFOREMENTIONED SYSTEM OF NATIONAL QUOTAS STOPPED PRODUCTION MOVING GRADUALLY TO AREAS PARTICULARLY SUITABLE FOR THE CULTIVATION OF SUGAR BEET AND, IN ADDITION PREVENTED ANY LARGE INCREASE IN PRODUCTION, IT CUT DOWN THE QUANTITIES WHICH PRODUCERS CAN SELL IN THE COMMON MARKET .

17 THIS RESTRICTION TOGETHER WITH THE RELATIVELY HIGH TRANSPORT COSTS, IS LIKELY TO HAVE A NOT INCONSIDERABLE EFFECT ON ONE OF THE ESSENTIAL ELEMENTS IN COMPETITION, NAMELY THE SUPPLY, AND CONSEQUENTLY ON THE VOLUME AND PATTERN OF TRADE BETWEEN MEMBER STATES .

18 SIMILARLY THE FACT THAT A UNIFORM INTERVENTION PRICE WAS FIXED FOR ALL MEMBER STATES EXCEPT ITALY WAS LIKELY TO PREVENT A RAPID INCREASE OF INTRA-COMMUNITY TRADE CAPABLE OF MAKING COMPETITION MORE INTENSE AND ALL THE MORE SO BECAUSE, ON THE ONE HAND, THE ORIGINAL MEMBER STATES WITH THE EXCEPTION OF ITALY AND LUXEMBOURG WERE ABLE TO MEET THEIR REQUIREMENTS TO A GREATER OR LESSER EXTENT FROM THEIR OWN PRODUCTION AND, ON THE OTHER HAND, THE SUGAR FACTORIES WITH VERY FEW EXCEPTIONS WERE MORE FAVOURABLY LOCATED IN RELATION TO THE AREAS OF CONSUMPTION OF THEIR RESPECTIVE COUNTRIES THAN THE PRODUCERS OF THE OTHER MEMBER STATES .

19 HOWEVER THE COMMUNITY SYSTEM ALSO CONTAINS ELEMENTS WHICH EITHER PROMOTE THE DEVELOPMENT OF TRADE BETWEEN MEMBER STATES AND, CONSEQUENTLY, EFFECTIVE COMPETITION, OR AT LEAST ARE LIKELY TO MODERATE THE OPPOSITE EFFECTS ARISING OUT OF THE BEFOREMENTIONED FACTS .

20 IN THE FIRST PLACE THE DISTINCTIVE FEATURE OF THIS SYSTEM - WHICH MOREOVER HAS ALLOWED AREAS HAVING A SURPLUS AS WELL AS AREAS HAVING A DEFICIT TO CONTINUE IN BEING - IS THE DISAPPEARANCE OF INTRA-COMMUNITY BARRIERS .

21 FURTHER THE 'PRICES' FIXED OR PROVIDED FOR BY THE COMMUNITY SYSTEM ARE NOT SALE PRICES FOR DEALERS, USERS AND CONSUMERS AND, CONSEQUENTLY, ALLOW PRODUCERS SOME FREEDOM TO DETERMINE THEMSELVES THE PRICE AT WHICH THEY INTEND TO SELL THEIR PRODUCTS .

22 MOREOVER THERE IS A GOOD DEAL OF EVIDENCE ON THE COURT'S FILE, INCLUDING STATEMENTS BY SEVERAL APPLICANTS, TO SHOW THAT, WHEN THE OPPORTUNITY PRESENTED ITSELF, THE SALE PRICE, FAR FROM APPEARING TO THE PERSONS CONCERNED TO BE A VALUE PREDETERMINED IN PRACTICE BY COMMUNITY RULES, WAS THE SUBJECT OF TOUGH NEGOTIATIONS .

23 FINALLY THE COMMON ORGANIZATION OF THE MARKET HAS NO APPRECIABLE EFFECT, EVEN INDIRECT, ON CERTAIN MATTERS WHICH ARE ALSO CAPABLE OF BEING THE SUBJECT OF, OR ENSURING EFFECTIVE COMPETITION, SUCH AS THE VOLUME OF DEMAND AND CONDITIONS OF SALE OTHER THAN THOSE RELATING TO THE PRICE OR QUALITY OF SERVICE .

24 WHATEVER CRITICISMS MAY BE MADE OF A SYSTEM, WHICH IS DESIGNED TO CONSOLIDATE A PARTITIONING OF NATIONAL MARKETS BY MEANS OF NATIONAL QUOTAS, THE EFFECTS OF WHICH WILL BE EXAMINED LATER, THE FACT REMAINS THAT IF IT LEAVES IN PRACTICE A RESIDUAL FIELD OF COMPETITION, THAT FIELD COMES WITHIN THE PROVISIONS OF THE RULES OF COMPETITION .

III

25 AS SEVERAL OF THE COMPLAINTS MADE BY THE COMMISSION BLAME THE UNDERTAKINGS CONCERNED FOR HAVING ENGAGED IN 'CONCERTED PRACTICES' WITHIN THE MEANING OF ARTICLE 85 OF THE TREATY, IT IS ADVISABLE TO RESTATE THE SCOPE OF THIS CONCEPT AND THE WAY IN WHICH IT MUST BE APPLIED IN A CASE OF THIS KIND .

26 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 .

27 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 .

28 IN A CASE OF THIS KIND THE QUESTION WHETHER THERE HAS BEEN A CONCERTED PRACTICE CAN ONLY BE PROPERLY EVALUATED IF THE FACTS RELIED ON BY THE COMMISSION ARE CONSIDERED NOT SEPARATELY BUT AS A WHOLE, AFTER TAKING INTO ACCOUNT THE CHARACTERISTICS OF THE MARKET IN QUESTION .

CHAPTER 1 :

COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE ITALIAN MARKET

29 UNDER SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) ERIDANIA, ZUCCHERIFICI, CAVARZERE, INDUSTRIA DEGLI ZUCCHERI, ROMANA, VOLANO, EMILIANA, SADAM, SERMIDE, ON THE ONE HAND, AND SUCRES ET DENREES, BEGHIN, SUCRE-UNION, SAY, GENERALE SUCRIERE, LEBAUDY-SUC, RT AND SZAG, ON THE OTHER HAND, ARE BLAMED FOR HAVING SINCE THE END OF THE 1968/69 MARKETING YEAR COMMITTED INFRINGEMENTS OF ARTICLE 85 ( 1 ) BY ENGAGING IN A CONCERTED PRACTICE HAVING AS ITS OBJECT AND EFFECT THE CONTROL OF DELIVERIES OF SUGAR ON THE ITALIAN MARKET AND CONSEQUENTLY THE PROTECTION OF THAT MARKET .

I - SUMMARY OF THE RELEVANT STATEMENTS OF THE DECISION AND OF THE MAIN ARGUMENTS OF THE PARTIES

30 THE COMMISSION TAKES THE VIEW THAT THE CONDUCT OF THE APPLICANTS AMOUNTS TO A CONCERTED PRACTICE PROHIBITED BY ARTICLE 85 OF THE TREATY IN THAT 'ALL COMPETITION ON THE ITALIAN MARKET BETWEEN THE BEFOREMENTIONED FRENCH, BELGIAN AND GERMAN SUPPLIERS AND THE GROUP OF ITALIAN IMPORTERS WAS ELIMINATED '.

31 THE RESTRICTIONS ON COMPETITION ARE 'PARTICULARLY OBVIOUS, BECAUSE, ON THE ONE HAND, THE SUPPLIERS SHARE OUT BETWEEN THEM, ACCORDING TO THE QUOTAS, THE AMOUNTS TO BE SUPPLIED ... AND, ON THE OTHER HAND, THE FRENCH AND BELGIAN SUPPLIERS CONCENTRATED THEIR OFFERS THROUGH SUCRES ET DENREES, THE ITALIAN PRODUCERS BEING REPRESENTED BY THE ERIDANIA COMPANY '.

32 'HAD IT NOT BEEN FOR THE SALES BETWEEN PRODUCERS ... THE SUGAR MANUFACTURERS OF THE COUNTRIES HAVING A SURPLUS WOULD HAVE SOLD THEIR SUGAR INDIVIDUALLY ON THE ITALIAN MARKET, FIXING THE QUANTITIES, PRICES AND DISTRIBUTIVE NETWORKS' SO THAT IT MUST BE ACKNOWLEDGED THAT 'IN CONSIDERATION OF THE AMOUNTS SOLD TO THEIR COMPETITORS, THE PRODUCERS THUS GIVE UP ANY INDEPENDENT COMMERCIAL OPERATIONS ON THE ITALIAN MARKET '.

33 THE DISPUTED PRACTICES AMOUNT TO A RESTRICTION OF COMPETITION WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES AND HAVE AN ADVERSE EFFECT ON ATTAINMENT OF THE OBJECTIVES OF A SINGLE MARKET BETWEEN MEMBER STATES .

34 TO THE EXTENT TO WHICH THE APPLICANTS DO NOT DISPUTE THE CONDUCT FOR WHICH THEY ARE BLAMED BY THE DECISION THEY SUBMIT THAT IT DOES NOT FALL WITHIN THE PROHIBITION LAID DOWN IN ARTICLE 85 OF THE TREATY, BECAUSE, ON THE ONE HAND, COMMUNITY RULES TOGETHER WITH THE MEASURES TAKEN BY NATIONAL AUTHORITIES LEFT NO OPPORTUNITY FOR ANY COMPETITION ON THE ITALIAN SUGAR MARKET WHICH WAS CAPABLE OF BEING PREVENTED, RESTRICTED OR DISTORTED AND BECAUSE, ON THE OTHER HAND, THE PRACTICES COMPLAINED OF WERE THE INEVITABLE CONSEQUENCE OF THE SAID MEASURES .

35 THE COMMISSION REPLIES, ON THE ONE HAND, THAT COMMUNITY AND ITALIAN REGULATIONS DID NOT PREVENT EFFECTIVE COMPETITION AND THAT, ON THE OTHER HAND, THE ITALIAN MEASURES DID NOT COMPEL THE APPLICANTS TO BEHAVE AS THEY DID .

II - EXAMINATION OF THE SUBMISSION

36 IT IS ADVISABLE TO EXAMINE FIRST OF ALL WHAT EFFECT THE ITALIAN RULES AND OTHER MEASURES ADOPTED BY THE ITALIAN AUTHORITIES HAVE ON THE EVALUATION OF THIS DISPUTE .

37 1 . DURING THE YEARS IN QUESTION THE 'COMITATO INTERMINISTERIALE DEI PREZZI' ( COMITE INTERMINISTERIEL DES PRIX, INTERDEPARTMENTAL COMMITTEE ON PRICES ), AN ITALIAN PUBLIC BODY, ( HEREINAFTER CALLED 'CIP ') ADOPTED A SERIES OF ORDERS (' PROVVEDIMENTI ') INCLUDING THE GRANT OF AIDS INTENDED MAINLY TO BENEFIT ITALIAN OPERATORS ( SUGAR BEET PRODUCERS, SUGAR FACTORIES, SUGAR EXPORTERS ) AND PAYABLE BY THE 'CASSA CONGUAGLIO ZUCCHERO' ( SUGAR EQUALIZATION FUND ), AN ITALIAN PUBLIC BODY ( HEREINAFTER CALLED 'CCZ '), WHICH UNDER THE RELEVANT LEGISLATION WAS ASSIGNED THE TASK OF ARRANGING 'THE REQUISITE EQUALIZATIONS WITH A VIEW TO INTEGRATING BY PROGRESSIVE STAGES THE ITALIAN SUGAR ECONOMY INTO THAT OF THE COMMUNITY IN ORDER TO ATTAIN A COMMON MARKET IN THE SUGAR SECTOR '.

38 THESE AIDS ARE FINANCED BY A LEVY (' SOVRAPREZZO ') OF LIT . 23 PER KG, WHICH WAS EQUIVALENT TO THE DIFFERENCE BETWEEN THE PRICES APPLIED IN ITALY AND THE COMMUNITY DERIVED INTERVENTION PRICE APPLICABLE IN THIS COUNTRY AND WAS IMPOSED UPON NATIONAL AS WELL AS IMPORTED SUGAR . HOWEVER THE LEVY ON IMPORTED SUGAR WAS REDUCED FOR THE PURPOSE OF OFFSETTING THE COST OF FOREIGN SUGAR, TO THE EXTENT TO WHICH IT EXCEEDED THE COST OF NATIONAL SUGAR AND THUS FACILITATING IMPORTS UP TO THE AMOUNT CONSIDERED NECESSARY TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FELL SHORT OF DEMAND .

39 PROVISION WAS MADE FOR THIS REDUCTION BECAUSE THE REQUIREMENT OF THE WHOLE OF THE 'SOVRAPREZZO' TOGETHER WITH THE IMPACT OF TRANSPORT COSTS WOULD HAVE MADE IT IMPOSSIBLE TO IMPORT COMMUNITY SUGAR INTO ITALY, SINCE FOREIGN SUPPLIERS COULD NOT HAVE OFFERED THEIR PRODUCTS AT A PRICE HIGHER THAN THE MAXIMUM PRICE FIXED BY THE ITALIAN AUTHORITIES, WHICH ACCORDING TO CIP WOULD HAVE BEEN 'CONTRARY TO THE OBJECTIVES WHICH WERE PURSUED '.

40 THE SAID ORDERS PROVIDED FOR THE ORGANIZATION BY CCZ OF PUBLIC INVITATIONS TO TENDER OPEN TO ALL OPERATORS WISHING TO IMPORT AT LEAST 1 000 METRIC TONS OF COMMUNITY SUGAR, AND COVERING THE AMOUNT OF THE REDUCED 'SOVRAPREZZO' WHICH THE PERSONS CONCERNED WERE PREPARED TO PAY, PROVIDED THAT THE TOTAL AMOUNTS WHICH MIGHT BE AWARDED AND THEREFORE BENEFIT FROM A REDUCED 'SOVRAPREZZO' WERE NOT TO EXCEED THE CEILING FIXED ON EACH OCCASION BY CIP .

41 SINCE THE PRINCIPLE UPON WHICH THIS SYSTEM IS BASED IS THE INTENTION OF THE ITALIAN ADMINISTRATION TO OBTAIN FROM SUCCESSFUL TENDERERS THE HIGHEST AMOUNT OF THE 'SOVRAPREZZO' HAVING DUE REGARD TO THE MAXIMUM PRICES, CCZ WAS GIVEN THE POWER TO FIX SECRETLY THE PROPORTION OF THE 'SOVRAPREZZO' WHICH IT CONSIDERED TO BE ADEQUATE (' PREZZO CONGRUO ') AND AWARD IMPORT QUOTAS ACCORDING TO THE QUANTITY AND AMOUNT OF THE 'SOVRAPREZZO' OFFERED BY THE APPLICANTS .

42 FOR THE PURPOSE OF ENSURING THAT IMPORTS ARE EFFECTED IN ACCORDANCE WITH THE PRESCRIBED CONDITIONS THE PERSONS CONCERNED MUST GIVE SECURITY OF A RELATIVELY HIGH AMOUNT UNDER THE APPLICABLE PROVISIONS WHICH PROVIDE THAT THE WHOLE OF THE 'SOVRAPREZZO' MUST BE PAID IF THE SAID CONDITIONS ARE NOT FULFILLED .

43 SINCE 'ALL COMMERCIAL OPERATORS CANNOT HAVE AN ORGANIZATION WHICH ENABLES THEM TO TAKE PART IN OPEN TENDERS', CIP AUTHORIZED CCZ TO ALLOW NOT MORE THAN 1 000 METRIC TONS TO BE IMPORTED OUTSIDE THE INVITATIONS TO TENDER AND IN CONSIDERATION OF A REDUCED 'SOVRAPREZZO', PROVIDED THAT, IF THE TOTAL AMOUNT FOR WHICH APPLICATIONS WERE MADE IN THIS WAY EXCEEDED 10 000 METRIC TONS, THE QUANTITIES FOR WHICH EACH APPLICANT APPLIED WERE REDUCED IN PROPORTION .

44 ORDER ISSUED AT A LATER DATE STATED THAT THE AMOUNTS IMPORTED OUTSIDE THE INVITATIONS TO TENDER WERE TO BE RESERVED FOR INDUSTRIAL CONSUMERS AND WERE NOT TO EXCEED IN THE AGGREGATE 20 PER CENT - LATER 25 PER CENT - OF THE MAXIMUM AMOUNT FIXED FOR EACH INVITATION TO TENDER .

45 THE CLEAR OBJECTIVE OF THE INVITATIONS TO TENDER AND IMPORTS OUTSIDE THESE INVITATIONS TO TENDER WAS ONLY TO PERMIT THE QUANTITY OF SUGAR TO BE IMPORTED WHICH WAS ABSOLUTELY NECESSARY TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FELL SHORT OF DEMAND .

46 AFTER HAVING ABOLISHED THE SYSTEM OF MAXIMUM CONSUMER PRICES IN FORCE BEFORE THE ESTABLISHMENT OF THE COMMUNITY SYSTEM THE ITALIAN AUTHORITIES 'IN ORDER TO SHIELD ITALIAN CONSUMERS FROM INCREASES WHICH ARE NOT DUE TO VARIATIONS OF COMMUNITY PRICES' ISSUED IN 1969, ORDER NO 1236, WHICH IN FACT ACHIEVES THIS RESULT BY MEANS OF A DECISION UNDER WHICH THE MAXIMUM LIMITS OF THE 'PRICE DIFFERENTIALS' FOR THE VARIOUS QUALITIES AND KINDS OF SUGAR, OF THE CHARGES FOR PACKAGING THE PRODUCT AS WELL AS THE TRADING MARGINS ON THE SALE OF THIS PRODUCT TO THE CONSUMER MUST REMAIN 'THOSE WHICH ARE DETERMINED BY A COMPARISON WITH THE QUOTATIONS IN ORDER NO 1119 OF 1965' BOTH FOR SALES BY PRODUCERS AND TO THE CONSUMER .

47 CIRCULAR NO 1237 WHICH FOLLOWED ORDER NO 1236 GAVE THE EX WORKS PRICE OF SUGAR, FROM WHICH THE MAXIMUM STANDARD CONSUMER PRICE IS DIRECTLY DERIVED, SINCE IT IS THE RESULT OF ADDING TOGETHER ITEMS, OF WHICH SOME ARE TAKEN FROM THE COMMUNITY PROVISIONS FIXING THE DERIVED INTERVENTION PRICE AND THE REMAINDER FROM THE PROVISIONS ADOPTED BY CIP .

48 IT APPEARS THAT MAXIMUM PRICES, WHICH APPLIED NOT ONLY AT THE CONSUMPTION BUT ALSO AT THE PRODUCTION LEVEL, APPLIED IN PARTICULAR TO SALES OF SUGAR TO INDUSTRIAL CONSUMERS .

49 ALTHOUGH THE ITALIAN CONSEIL D'ETAT ANNULLED ORDER NO 1236 AND CIRCULAR NO 1237, ATTENTION MUST BE DRAWN TO THE FACT THAT, ON THE ONE HAND, THIS DECISION WAS NOT MADE UNTIL 29 FEBRUARY 1972, AND, ON THE OTHER HAND, THAT IT CONFIRMED THAT THE DISPUTED MEASURES WERE IN SUBSTANCE LAWFUL AND FINALLY THAT THE BEFOREMENTIONED SYSTEM OF PRICES CONTINUED IN FACT TO BE APPLIED .

50 2 . A - THE COMMISSION DOES NOT SERIOUSLY DENY THAT THESE REGULATIONS AS WELL AS THE WAY IN WHICH THEY HAVE BEEN IMPLEMENTED AFFECTED THE APPLICANTS' CONDUCT TO WHICH EXCEPTION IS TAKEN .

51 IN THE FIRST PLACE IN THE ENUMERATION OF THE PARTICULARS OF THIS COMPLAINT THE COMMISSION REFERS, INTER ALIA, TO THE INVITATIONS TO TENDER ORGANIZED BY CCZ AND RECORDS IN PARTICULAR 'THAT ... THE IMPORTERS' GROUP TOOK APPROXIMATELY 75 PER CENT OF THE TOTAL AMOUNT OF IMPORTS PUT UP FOR TENDER ( DECISION P . 24 UNDER C 13 ), ALL THE SUGAR TAKEN BY ERIDANIA OR ANY OTHER MEMBER OF THE GROUP WAS SUPPLIED BY THE SUPPLIERS' GROUP ( LOC CIT .) AND THAT THE CONCERTED ACTION BETWEEN PRODUCER-IMPORTERS IS EVIDENT ... FROM THE FACT THAT THEY OFFERED SIMILAR RATES OF THE "SOVRAPREZZO" AT THE INVITATIONS TO TENDER ( IN PRACTICE FROM THE FACT THAT THEY MADE JOINT PURCHASES PURSUANT TO AGREEMENTS AND DISTRIBUTION ARRANGEMENTS AGREED UPON BEFOREHAND ') ( STATEMENT OF DEFENCE IN CASE 114/73, P . 58 ), A PRACTICE WHICH HAD THE EFFECT THAT 'INVITATIONS TO TENDER ( WERE UNABLE ) TO PLAY THE PART ASSIGNED TO THEM' ( LOC . CIT . P . 42 ).

52 FURTHER THE COMMISSION BLAMES THE APPLICANTS IN A MORE GENERAL WAY FOR HAVING 'MADE USE OF THE ITALIAN RULES IN ORDER TO RESTRICT OPPORTUNITIES FOR COMPETITION' ( REJOINDER IN CASE 48/73, P . 17 ) AND ASSERTS THAT THESE RULES 'DO NOT EXPLAIN EVERYTHING' ( LOC . CIT ., P . 19 ), WHICH IS TANTAMOUNT TO AN ADMISSION THAT THEY AT LEAST EXPLAIN CERTAIN ASPECTS OF THE APPLICANTS' ACTIONS .

53 MOREOVER A 'REPORT ON AN INVESTIGATION INTO INVITATIONS TO TENDER', ANNEX NO 16 TO THE STATEMENT OF DEFENCE IN CASE 44/73, DRAWN UP BY AGENTS OF THE COMMISSION ( DIRECTORATE-GENERAL FOR COMPETITION ) STATES INTER ALIA THAT 'THE PROCEDURE IN FACT ADOPTED AT INVITATIONS TO TENDER UNDOUBTEDLY ENCOURAGES THE CONCERTED ACTION BY ITALIAN PRODUCERS TO CONTROL ALL IMPORTS OF SUGAR '.

54 FINALLY THE COMMISSION HAS NOT REFUTED CERTAIN STATEMENTS, WHICH ERIDANIA PRODUCED, PARTLY AS EVIDENCE UPON WHICH IT RELIES, NAMELY, ON THE ONE HAND, THAT THE ITALIAN GOVERNMENT NEVER CONCEALED THE FACT THAT IT ALWAYS 'WANTED AND REQUESTED' ITALIAN PRODUCERS 'TO TAKE PART IN AND PROCEED ... TO IMPORT THE REQUISITE QUANTITIES OF SUGAR TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FALLS SHORT OF DEMAND' AND TO DO SO 'IN A RATIONALIZED WAY' THAT IS TO SAY BY CONCERTED ACTION, AND, ON THE OTHER HAND, THAT THE SAID GOVERNMENT 'ALWAYS PURSUED THE FUNDAMENTAL OBJECTIVE OF A UNIFORM PRICE FOR SUGAR ... BOTH FOR CONSUMPTION AS FOOD AND FOR THE SUGAR PROCESSING INDUSTRY' ( REPLY IN CASE 114/73, P . 57, 78 TO 79; CF . ALSO THE APPLICATION IN THIS CASE, P . 25 ).

55 NOR HAS THE COMMISSION REFUTED THE STATEMENTS, WHICH SUCRES ET DENREES PRODUCED AS EVIDENCE UPON WHICH IT RELIES, THAT, ON THE ONE HAND, A SENIOR ITALIAN OFFICIAL INFORMED SUCRES ET DENREES 'OF THE NEED TO HARMONIZE SUPPLIES ABOVE AND BELOW THE FRANCO-ITALIAN FRONTIER, IN SUCH A WAY THAT A UNIFORM PRICE CAN BE MAINTAINED ON ITALIAN TERRITORY ..., AN ABSOLUTELY ESSENTIAL ECONOMIC AND SOCIAL REQUIREMENT FOR THE ITALIAN AUTHORITIES' AND, ON THE OTHER HAND, THAT 'THE SYSTEM OF INVITATIONS TO TENDER ... WAS ADOPTED AS A MEANS OF OBTAINING SUCH A UNIFORM PRICE, THANKS TO THE UNDERTAKING GIVEN BY THE PRINCIPAL ITALIAN IMPORTER TO MAINTAIN THE SAID UNIFORM PRICE' ( APPLICATION IN CASE 48/73, P . 18 TO 19 ).

56 MOREOVER THESE STATEMENTS TALLY WITH THE AIMS INDICATED IN THE REGULATIONS IN QUESTION, IN THAT THEY ARE DESIGNED TO LIMIT IMPORTS TO THE MINIMUM REQUIRED TO MAKE GOOD THE AMOUNT BY WHICH ITALIAN PRODUCTION FALLS SHORT OF DEMAND, TO HARMONIZE THE COST OF FOREIGN SUGAR WITH THAT OF NATIONAL SUGAR AND TO KEEP PRICES IN ITALY AT A UNIFORM LEVEL AND RELATIVELY LOW .

57 B - APART FROM THESE CONSIDERATIONS THE SAID REGULATIONS - TOGETHER WITH THE INFLUENCE EXERTED BY THE ITALIAN AUTHORITIES ON THE OPERATIONS OF THE PRODUCERS CONCERNED - WERE IN MANY RESPECTS LIKELY TO BRING ABOUT THE CONCENTRATION OF DEMAND IN ITALY IN THE HANDS OF THE LARGE PRODUCERS AND THE FORMATION OF GROUPS OF PRODUCER-IMPORTERS AND ALSO OF SUPPLIER-EXPORTERS .

58 FIRST OF ALL QUOTA RESTRICTIONS ON IMPORTS BENEFITING FROM A REDUCED 'SOVRAPREZZO' CONSIDERED TOGETHER WITH THE RISKS ATTACHING TO THE INVITATIONS TO TENDER WERE LIKELY TO INDUCE THE PERSONS CONCERNED TO SHARE OUT THE SUPPLY AS WELL AS THE DEMAND AND TO COME TO AN AGREEMENT ON THE AMOUNT OF THE 'SOVRAPREZZO' TO BE OFFERED, WITH THE OBJECT OF PREVENTING ONE OR THE OTHER OF THEM FROM BEING EXCLUDED FROM THE SUPPLIES IN QUESTION, BECAUSE THE AMOUNT OF THE 'SOVRAPREZZO' WHICH HE OFFERED WAS TOO LOW .

59 THIS IS IN PARTICULAR WHAT HAPPENS, ON THE ONE HAND, TO FOREIGN SUPPLIERS FORCED TO SELL LARGE SURPLUSES AND, ON THE OTHER HAND, TO SMALL ITALIAN PRODUCERS WHO CANNOT DEAL IN LARGE AMOUNTS .

60 FURTHER, FIXING LARGE MINIMUM AMOUNTS ( 1 000 METRIC TONS ) FOR EACH INDIVIDUAL TENDER SUBMITTED FOR AN AWARD - TOGETHER WITH THE ABSENCE OF ANY INDEPENDENT DISTRIBUTIVE NETWORK AND THE FACT THAT IT WAS ALMOST IMPOSSIBLE FOR INDUSTRIAL CONSUMERS, WHO HAVE NO STORAGE FACILITIES AND MORE OFTEN THAN NOT HAVE TO OBTAIN THEIR SUPPLIES ON A DAY TO DAY BASIS, TO TAKE PART IN THE INVITATIONS TO TENDER - OF NECESSITY RESULTED IN ITALIAN PRODUCERS, IN ACCORDANCE WITH THE WISH OF THE NATIONAL AUTHORITIES, ALONE BEING ABLE TO ATTEND THE INVITATIONS TO TENDER AND THIS WAS BOUND TO MAKE FOREIGN SUPPLIERS OFFER THE SAID PRODUCERS A LARGE PROPORTION OF THE SUGAR WHICH THEY INTENDED TO EXPORT TO ITALY .

61 MOREOVER, THE FACT THAT THE AMOUNTS FOR WHICH APPLICATIONS FOR THE PURPOSE OF IMPORTING WERE MADE OUTSIDE THE INVITATIONS TO TENDER WERE REDUCED IN PROPORTION WHEN THEY EXCEEDED IN THE AGGREGATE THE CEILING OF 10 000 METRIC TONS WAS LIKELY TO DISSUADE THOSE CONCERNED FROM MAKING USE OF THIS SYSTEM OF IMPORTING AND INDUCE THEM TO OBTAIN THEIR SUPPLIES DIRECT FROM NATIONAL PRODUCERS .

62 FURTHER THE SAID FIXING OF MINIMUM QUANTITIES COULD FORCE SMALL ITALIAN PRODUCERS, WHO WERE ANXIOUS TO CONTINUE TO BE ABLE TO PARTICIPATE IN IMPORT OPERATIONS, TO COOPERATE WITH THEIR COUNTERPARTS WHO CARRY ON BUSINESS ON A LARGER SCALE .

63 THE CENTRALIZATION OF BOTH SUPPLY AND DEMAND MAY BE CONSIDERED TO BE THE RESULT OF THE ITALIAN REGULATIONS AND WAS ENCOURAGED IN ADDITION BY THE FACT THAT, BECAUSE OF THE SIZE OF THE AMOUNTS PUT UP FOR TENDER, BUYERS FOUND THAT THERE WAS A STRONG INCENTIVE FOR THEM TO TURN TO EXPORTERS, WHOSE OUTPUT WAS ADEQUATE, WHO COULD GUARANTEE REGULAR BULK DELIVERIES AND ENTER INTO AGREEMENTS AT ATTRACTIVE PRICES, MAINLY BECAUSE THEY COULD GET UNUSUALLY SATISFACTORY FREIGHT RATES WHICH RAILWAY UNDERTAKINGS COULD NOT HAVE OFFERED FOR SMALLER AMOUNTS .

64 THESE CIRCUMSTANCES COULD, ON THE ONE HAND, INDUCE PRODUCER-EXPORTERS TO APPOINT A SOLE AGENT, NAMELY SUCRES ET DENREES, WHICH COULD GIVE THE NECESSARY GUARANTEES FOR THE SUCCESSFUL COMPLETION OF THESE OPERATIONS, TO CARRY OUT THE EXPORT OPERATIONS, AND, ON THE OTHER HAND, ALSO INDUCE PRODUCER-IMPORTERS TO CENTRALIZE NEGOTIATIONS BY GIVING ERIDANIA, A LARGE ITALIAN PRODUCER, THE NECESSARY AUTHORITY .

65 3 . ALL THESE CONSIDERATIONS SHOW THAT ITALIAN REGULATIONS AND THE WAY IN WHICH THEY HAVE BEEN IMPLEMENTED HAD A DETERMINATIVE EFFECT ON SOME OF THE MOST IMPORTANT ASPECTS OF THE COURSE OF CONDUCT OF THE UNDERTAKINGS CONCERNED WHICH THE COMMISSION CRITICIZES, SO THAT IT APPEARS THAT, HAD IT NOT BEEN FOR THESE REGULATIONS AND THEIR IMPLEMENTATION, THE COOPERATION, WHICH IS THE SUBJECT-MATTER OF THESE PROCEEDINGS, EITHER WOULD NOT HAVE TAKEN PLACE OR WOULD HAVE ASSUMED A FORM DIFFERENT FROM THAT FOUND TO HAVE EXISTED BY THE COMMISSION .

66 IT EMERGES FROM THE CONTESTED DECISION THAT THE COMMISSION HAS NOT MADE SUFFICIENT ALLOWANCE FOR THE EFFECT OF THOSE REGULATIONS AND HAS CONSEQUENTLY OVERLOOKED A CRUCIAL FACTOR IN THE EVALUATION OF THE INFRINGEMENTS WHICH IT ALLEGES .

67 4 . FURTHER THE OBJECT AND EFFECT OF ITALIAN REGULATIONS AND THE WAY IN WHICH THEY HAVE BEEN IMPLEMENTED WAS TO MATCH SUPPLY EXACTLY WITH DEMAND AND THEREBY REMOVE A VITAL ELEMENT OF NORMAL COMPETITION .

68 FURTHERMORE THE SYSTEM DESCRIBED ABOVE HAS SUBSTANTIALLY REDUCED THE OPPORTUNITIES AVAILABLE TO THE PARTIES CONCERNED TO NEGOTIATE A PRICE WHICH WOULD HAVE RESULTED FROM THE FREE MARKET FORCES OF SUPPLY AND DEMAND .

69 IN ADDITION, THE ITALIAN REGULATIONS IMPEDED, INDIRECTLY BUT FUNDAMENTALLY, THE BUYER'S FREEDOM TO CHOOSE HIS SUPPLIER AND VICE VERSA .

70 MOREOVER THE ONLY EFFECTIVE COMPETITION, WHICH THESE REGULATIONS, AT LEAST OSTENSIBLY, ALLOWED TO REMAIN, NAMELY COMPETITION RELATING TO THE AMOUNTS OF THE 'SOVRAPREZZO' TO BE TENDERED FOR THE PURPOSES OF THE ADJUDICATIONS TO TENDER, WAS LIKELY TO INCREASE A NOT INCONSIDERABLE ITEM OF THE COST PRICE OF ANY PURCHASER AND, CONSEQUENTLY, THE PRICES APPLIED WHEN THE SUGAR AWARDED IS RESOLD, WHEREAS THE PROVISIONS OF THE TREATY RELATING TO COMPETITION ARE ON THE CONTRARY DESIGNED, INTER ALIA, TO PREVENT CARTELS ALLOWING ITS MEMBERS TO APPLY UNJUSTIFIED PRICES .

71 ALTHOUGH, AS HAS BEEN INDICATED EARLIER, THE SYSTEM OF NATIONAL QUOTAS, BY TENDING TO PARTITION NATIONAL MARKETS, ONLY LEAVES A RESIDUAL FIELD FOR THE OPERATION OF THE RULES OF COMPETITION, THAT FIELD IS IN TURN TO A GREAT EXTENT FUNDAMENTALLY RESTRICTED IN ITS SCOPE BY THE SPECIAL ORGANIZATION OF THE ITALIAN MARKET .

72 THESE CONSIDERATIONS SHOW THAT THE CONDUCT COMPLAINED OF COULD NOT APPRECIABLY IMPEDE COMPETITION AND DOES NOT THEREFORE COME WITHIN THE PROHIBITION OF ARTICLE 85 OF THE TREATY .

73 SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .

CHAPTER 2

THE COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE NETHERLANDS MARKET

74 SUBPARAGRAPH 2 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION BLAMES SU AND CSM, ON THE ONE HAND, AND RT AND PFEIFER UND LANGEN, ON THE OTHER HAND, FOR HAVING 'SINCE THE 1968/69 MARKETING YEAR ( PFEIFER UND LANGEN ONLY SINCE THE 1970/71 MARKETING YEAR )' - THAT IS TO SAY FROM THE 1968/69 TO THE 1971/72 MARKETING YEAR - 'COMMITTED INFRINGEMENTS OF ARTICLE 85 ( 1 ) BY ENGAGING IN A CONCERTED PRACTICE HAVING AS ITS OBJECT AND EFFECT THE CONTROL OF DELIVERIES OF SUGAR ON THE NETHERLANDS MARKET FROM BELGIUM AND THE WESTERN PART OF GERMANY AND CONSEQUENTLY THE PROTECTION OF THAT MARKET '.

SECTION 1 : PRELIMINARY SUBMISSION : THE 'COOPERATIVE VERENIGING SUIKER, UNIE ( UA' ( SU ) WAS NOT A LEGAL ENTITY DURING PART OF THE PERIOD TO WHICH THIS COMPLAINT REFERS

75 I - SU SUBMITS THAT IT ONLY COMMENCED BUSINESS ON 2 JANUARY 1971 SO THAT THERE IS NO FOUNDATION FOR THE FINDING IN THE DECISION THAT THE APPLICANT COMMITTED INFRINGEMENTS 'FROM THE 1968/69 MARKETING YEAR '.

76 SIMILARLY THE COMMISSION INFRINGED REGULATION NO 17, AND IN PARTICULAR ARTICLE 15 ( 2 ) THEREOF, BY IMPOSING ON THE APPLICANT A FINE FOR AN INFRINGEMENT WHICH IT COULD NOT HAVE COMMITTED DURING MOST OF THE PERIOD UNDER CONSIDERATION .

77 THE COURT FILE SHOWS THAT IN 1966 FOUR NETHERLANDS SUGAR PRODUCING COOPERATIVES, THE MEMBERS OF WHICH WERE BEET GROWERS, FORMED AN ASSOCIATION KNOWN AS 'COOPERATIEVE VERENIGING SUIKER UNIE UA', HEREINAFTER CALLED 'THE FORMER ASSOCIATION', HAVING AS ITS OBJECT, IN PARTICULAR, THE COORDINATION OF THE OPERATIONS OF THE SAID COOPERATIVES WHICH HAD TO CARRY OUT THE INSTRUCTIONS OF THE ASSOCIATION, ESPECIALLY FOR MAKING THE BEST POSSIBLE USE OF PLANT, INVESTMENTS AND PRICES .

78 PROMPTED BY THE WISH TO ATTAIN CLOSER COOPERATION AMOUNTING TO AN ACTUAL MERGER THE FOUR COOPERATIVES FORMED ON 16 JULY 1970 A COMPANY ALSO CALLED 'COOPERATIEVE VERENIGING SUIKER UNIE UA', WHICH BROUGHT TOGETHER UNDER ITS WING THE MEMBERS OF THE SAID COOPERATIVES AS DIRECT PARTICIPATORS, COMMENCED BUSINESS ON 1 JANUARY 1971 AND IS THE APPLICANT IN THIS CASE .

79 AFTER THE FORMER ASSOCIATION HAD CHANGED ITS NAME TO 'COOPERATIEVE VERENIGING SUIKER UNIE BEHEER UA', IT CEASED TRADING WHEN THE APPLICANT COMMENCED BUSINESS AND WAS DISSOLVED WITH EFFECT FROM 1 JUNE 1971 .

80 THE FOUR COOPERATIVES WHICH WERE MEMBERS OF THE FORMER ASSOCIATION WERE DISSOLVED ON 31 DECEMBER 1970 AND ON 1 JANUARY 1971 THE APPLICANT ASSUMED ALL THEIR RIGHTS AND LIABILITIES .

81 THE APPLICANT STATES THAT IT CANNOT BE HELD RESPONSIBLE FOR ACTS AND THINGS DONE BY THE FORMER ASSOCIATION WHICH IS NOT ITS PREDECESSOR (' RECHTSVOORGANGER ') AND WHICH HAD NEITHER ANY GOODWILL NOR ANY ASSETS WHICH IT COULD HAVE TRANSFERRED TO THE APPLICANT, QUITE APART FROM THE FACT THAT A TRANSFER OF GOODWILL IS NOT KNOWN IN NETHERLANDS LAW .

82 THE APPLICANT IS ONLY THE LEGAL AND ECONOMIC SUCCESSOR OF THE FOUR COOPERATIVES, THE NAMES OF WHICH MOREOVER NEVER INCLUDED THE WORDS 'SUIKER UNIE '.

83 EVEN IF IT MUST BE TREATED AS THE LEGAL SUCCESSOR OF THE FORMER ASSOCIATION, THERE IS A CASE FOR TAKING ACCOUNT OF THE FACT THAT THIS ASSOCIATION WAS NOT LIABLE FOR THE OBLIGATIONS ARISING OUT OF THE DECISION, WHICH WERE THE DIRECT LIABILITY OF SU .

84 II - AS THE APPLICANT ASSUMED ALL THE RIGHTS AND LIABILITIES OF THE FOUR COOPERATIVES OF THE OLD ASSOCIATION, IT MUST BE TREATED AS THE ECONOMIC SUCCESSOR BOTH OF THE OLD ASSOCIATION AND OF ITS MEMBERS, WHICH INDEED IS WHAT THOSE MEMBERS INTENDED .

85 THE APPLICANT MOREOVER DOES NOT DENY THAT THE NAME 'SUIKER UNIE' ALWAYS COVERED THE SAME UNDERTAKINGS, WHICH WERE RUN FOR THE MOST PART BY THE SAME PERSONS AND HAD THEIR REGISTERED OFFICES AT THE SAME ADDRESS .

86 IT DOES NOT EVEN CLAIM THAT ITS CONDUCT ON THE SUGAR MARKET DIFFERED FROM THAT OF THE FORMER ASSOCIATION .

87 IN THESE CIRCUMSTANCES, SO FAR AS THE SUGAR MARKET IS CONCERNED, THE MAIN FEATURE OF THE CONDUCT OF THE APPLICANT AND ITS PREDECESSOR WAS ITS OBVIOUS CONTINUITY, WHICH MEANS THAT THE WHOLE OF THIS BEHAVIOUR MUST BE ATTRIBUTED TO THE APPLICANT .

88 THEREFORE THIS SUBMISSION IS UNFOUNDED .

SECTION 2 : PROCEDURAL AND FORMAL SUBMISSIONS

I - SUBMISSIONS CONCERNING THE ADMINISTRATIVE PROCEDURE

1 . PREMATURE PUBLICATION A BREACH OF THE PRINCIPLE THAT EVERYONE HAS THE RIGHT TO A FAIR TRIAL

89 SU, CSM AND PFEIFER UND LANGEN BLAME THE COMMISSION FOR HAVING INFRINGED THE PRINCIPLE THAT EVERYONE HAS THE RIGHT TO A FAIR TRIAL BY ISSUING CERTAIN PUBLIC STATEMENTS GIVING THE IMPRESSION THAT THE INFRINGEMENTS ALLEGED HAD BEEN FOUND TO EXIST . WHAT IS MORE THEY DID SO BEFORE THE UNDERTAKINGS CONCERNED HAD EVEN BEEN ABLE TO DEFINE THEIR POSITION ON THE COMPLAINTS AFFECTING THEM .

90 THUS THE COMMISSION DEPRIVED ITSELF OF THE OPPORTUNITY OF DETERMINING IMPARTIALLY THE FACTS OF THE CASE AND THE ARGUMENTS PUT FORWARD BY THE APPLICANTS .

91 THERE IS NOTHING IN THE COURT'S FILE TO SUPPORT THE PRESUMPTION THAT THE CONTESTED DECISION WOULD NOT HAVE BEEN TAKEN OR WOULD HAVE BEEN DRAWN UP IN A DIFFERENT WAY, IF THE PUBLIC STATEMENTS WHICH ARE THE SUBJECT-MATTER OF THIS SUBMISSION HAD NOT BEEN MADE, WHETHER OR NOT THEY ARE OPEN TO CRITICISM UNDER ANOTHER LEGAL HEAD .

92 MOREOVER THE DECISION HAS NOT UPHELD ALL THE COMPLAINTS SET OUT IN THE NOTIFICATION OF OBJECTIONS .

93 THIS SUBMISSION MUST THEREFORE BE DISMISSED .

2 . UNDULY SHORT TIME-LIMITS FOR SUBMISSION OF OBSERVATIONS

94 SU, CSM AND PFEIFER UND LANGEN SUBMIT THAT BY GRANTING THE UNDERTAKINGS CONCERNED A TIME-LIMIT OF ONLY TWO MONTHS FOR SUBMISSION OF THEIR OBSERVATIONS ON THE NOTIFICATION OF OBJECTIONS THE COMMISSION INFRINGED ARTICLE 11 OF REGULATION NO 99/63 UNDER WHICH IN FIXING THE TIME-LIMITS PROVIDED FOR BY THIS REGULATION 'THE COMMISSION SHALL HAVE REGARD TO THE TIME REQUIRED FOR PREPARATION OF COMMENTS '.

95 THE TIME-LIMIT FIXED IN THIS WAY WAS TOO SHORT, ESPECIALLY IF ACCOUNT IS TAKEN OF THE FACT THAT THE COMMISSION ITSELF TOOK MORE THAN TWO YEARS TO CARRY OUT ITS INVESTIGATION .

96 ACCORDING TO ARTICLE 11 THE TIME-LIMIT IN QUESTION 'SHALL NOT BE LESS THAN TWO WEEKS' WHICH SHOWS THAT, WHEN THE COMMISSION FIXED IT AT TWO MONTHS, IT GRANTED THE UNDERTAKINGS CONCERNED A PERIOD MUCH LONGER THAN THE MINIMUM PRESCRIBED BY THIS ARTICLE .

97 FURTHER, SINCE ARTICLE 11 ALSO REQUIRES THE 'URGENCY OF THE CASE' TO BE TAKEN INTO ACCOUNT, THE COMMISSION, BECAUSE IT CONSIDERED, RIGHTLY OR WRONGLY, THAT IT WAS FACED WITH A SERIES OF CARTELS OF A PARTICULARLY DAMAGING KIND, COULD HAVE COME TO THE CONCLUSION THAT IT WAS BOUND TO EXPEDITE THE ADMINISTRATIVE PROCEDURE WITH A VIEW TO BEING ABLE TO BRING THE COURSE OF CONDUCT COMPLAINED OF TO AN END AS QUICKLY AS POSSIBLE .

98 A COMPARISON, ON THE ONE HAND, OF THE TIME WHICH ELAPSED BETWEEN THE OPENING AND CLOSING OF THE INVESTIGATION AND, ON THE OTHER HAND, OF THE DISPUTED TIME-LIMIT OF TWO MONTHS IS IRRELEVANT, AS THE COMMISSION HAD TO COLLECT A CONSIDERABLE NUMBER OF FACTS RELATING TO A LARGE NUMBER OF UNDERTAKINGS WHEREAS EACH OF THE LATTER ONLY HAD IN THE MAIN TO EXPLAIN ITS OWN CONDUCT .

99 THIS SUBMISSION CANNOT THEREFORE BE UPHELD .

3 . FAILURE BY THE COMMISSION TO HAVE TAKEN INTO ACCOUNT CERTAIN FACTS PUT FORWARD BY THE APPLICANT

100 SU SUBMITS THAT THE COMMISSION INFRINGED ARTICLE 19 ( 1 ) OF REGULATION NO 17 AND ARTICLE 1 OF REGULATION NO 99/63, WHEN A MEMBER OF THE COMMISSION STATED AT A PRESS CONFERENCE ON 18 DECEMBER 1972 THAT NONE OF THE UNDERTAKINGS AFFECTED BY THE DECISION HAD SUBMITTED THAT IT FIXED THE PRICE OF SUGAR IN AGREEMENT WITH THE COMPETENT AUTHORITY OF THE RESPECTIVE MEMBER STATE, EVEN THOUGH SU EXPRESSLY STATED IN THE ADMINISTRATIVE PROCEDURE THAT IT HAD DONE SO .

101 THESE ARTICLES SHOW THAT, BEFORE TAKING A DECISION AND CONSULTING THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND MONOPOLIES, THE COMMISSION IS UNDER A DUTY TO GIVE UNDERTAKINGS CONCERNED 'THE OPPORTUNITY OF BEING HEARD ON THE MATTERS TO WHICH THE COMMISSION HAS TAKEN OBJECTION '.

102 SU'S STATEMENTS SHOW THAT IT HAD THE OPPORTUNITY OF DEFINING ITS POSITION ON THE POINT IN QUESTION .

103 IF A MEMBER OF THE COMMISSION HAS GIVEN THE PRESS INCORRECT INFORMATION CONCERNING STATEMENTS PUT FORWARD BY AN UNDERTAKING DURING AN ADMINISTRATIVE PROCEDURE, THIS DOES NOT PROVE THAT THE COMMISSION DID NOT TAKE THE SAID STATEMENTS INTO CONSIDERATION .

104 THE SUBMISSION IS THEREFORE UNFOUNDED .

4 . INFRINGEMENT OF ARTICLE 4 OF REGULATION NO 99/63

105 ACCORDING TO SU THE COMMISSION INFRINGED ARTICLE 4 OF REGULATION NO 99/63 WHICH READS - 'THE COMMISSION SHALL IN ITS DECISION DEAL ONLY WITH THOSE OBJECTIONS RAISED AGAINST UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS IN RESPECT OF WHICH THEY HAVE BEEN AFFORDED THE OPPORTUNITY OF MAKING KNOWN THEIR VIEWS '.

106 THE DECISION TREATS THE PURCHASES OF THE NETHERLANDS PRODUCERS FROM RT AND PFEIFER UND LANGEN AS SEPARATE INFRINGEMENTS, WHEREAS THE NOTIFICATION OF OBJECTIONS MERELY REGARDED THEM AS EVIDENCE OF A CONCERTED PRACTICE .

107 IT IS CLEAR FROM THE LETTER AND SPIRIT OF THE DECISION THAT THE COMMISSION DOES NOT MAINTAIN THAT DELIVERIES FROM PRODUCER TO PRODUCER AS SUCH ARE UNLAWFUL BUT HAS INFERRED THE ILLEGALITY OF THESE OPERATIONS FROM THE FACT THAT THEY ARE CONSTITUENT PARTS OF CONCERTED PRACTICES .

108 AS THE DECISION DOES NOT DIFFER FROM THE NOTIFICATION OF OBJECTIONS ON THIS POINT THE SUBMISSION IS UNFOUNDED .

II - SUBMISSIONS RELATING TO THE DRAFTING AND NOTIFICATION OF THE DECISION

1 . INFRINGEMENT OF THE RIGHT TO DEFEND BY THE ADOPTION OF A SINGLE DECISION; INFRINGEMENT OF THE FIRST PARAGRAPH OF ARTICLE 191 ( 2 ) OF THE TREATY AND OF ARTICLE 3 OF REGULATION 1 ( 1 )

109 A - SU AND CSM BLAME THE COMMISSION FOR HAVING INFRINGED THEIR RIGHT TO DEFEND THEMSELVES BY ADOPTING A SINGLE DECISION, ALTHOUGH IT WAS TAKING ACTION RELATING TO A LARGE NUMBER OF UNDERTAKINGS AND A SERIES OF ALLEGED INFRINGEMENTS WHICH WERE NOT CONNECTED WITH EACH OTHER .

110 THIS PROCEDURE LEFT THE UNDERTAKINGS TO WHICH THE DECISION WAS ADDRESSED UNCERTAIN AS TO THE EXACT NATURE OF THE COMPLAINTS MADE AGAINST EACH OF THEM INDIVIDUALLY AND MIGHT LEAD TO THE INFRINGEMENTS WHICH AN UNDERTAKING MAY HAVE COMMITTED BEING ATTRIBUTED TO ANOTHER UNDERTAKING AS WELL .

111 THERE IS NO REASON AT ALL WHY THE COMMISSION SHOULD NOT MAKE A SINGLE DECISION COVERING SEVERAL INFRINGEMENTS, 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 .

112 AS THE CONTESTED DECISION FULFILLED THIS REQUIREMENT SO FAR AS SU AND CSM IS CONCERNED, THIS SUBMISSION IS UNFOUNDED .

113 B - SU SUBMITS THAT THE COMMISSION HAS INFRINGED PARAGRAPH 2 OF ARTICLE 191 OF THE TREATY AND ALSO REGULATION NO 1 ( 3 ) BY SENDING IT NOT ONLY THE DUTCH VERSION OF THE DECISION BUT ALSO THE GERMAN, FRENCH AND ITALIAN VERSIONS AND WITHOUT CALLING ATTENTION TO THE FACT THAT THE DUTCH TEXT ALONE IS AUTHENTIC SO FAR AS SU IS CONCERNED .

114 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 .

115 AS THIS REQUIREMENT WAS FULFILLED IN THIS CASE, THE FACT THAT THE COMMISSION ALSO SENT THE APPLICANTS COPIES OF THE DECISION IN OTHER LANGUAGES IS NOT SUCH AS TO CALL INTO QUESTION ITS VALIDITY .

116 THEREFORE THIS SUBMISSION CANNOT BE UPHELD .

2 . INFRINGEMENT OF ARTICLE 190 OF THE TREATY

117 SU AND CSM SUBMIT THAT SOME OF THE ASSERTIONS IN THE STATEMENT OF THE REASONS UPON WHICH THE DECISION IS BASED ARE TOO VAGUE TO FULFIL THE REQUIREMENTS OF ARTICLE 190 OF THE TREATY .

118 EVEN IF IT IS ASSUMED THAT THE PASSAGES TO WHICH SU AND CSM HAVE DRAWN ATTENTION WERE NOT DRAWN UP WITH THE ACCURACY TO BE DESIRED, THIS FACT HAS NEITHER PREVENTED THE APPLICANTS NOR THE COURT FROM GRASPING THE NATURE AND EXTENT OF THE COMPLAINT MADE BY THE COMMISSION AND FROM DETERMINING WHETHER IT IS WELL-FOUNDED OR UNFOUNDED, SO THAT THERE CAN BE NO QUESTION OF AN INFRINGEMENT OF ANY ESSENTIAL PROCEDURAL REQUIREMENT WITHIN THE MEANING OF ARTICLE 173 OF THE TREATY .

119 TO THE EXTENT TO WHICH THIS SUBMISSION AIMS AT DISPUTING THE FACTS ALLEGED BY THE COMMISSION OR THEIR EVALUATION BY THE LATTER IT BELONGS TO THE SUBSTANCE OF THE CASE .

120 THEREFORE IT CANNOT BE UPHELD .

3 . LACK OF CLARITY IN THE OPERATIVE PART OF THE DECISION

121 SU, CSM AND RT SUBMIT RESPECTIVELY THAT THE COMMISSION HAS INFRINGED AN ESSENTIAL PROCEDURAL REQUIREMENT, THE PRINCIPLE OF LEGAL CERTAINTY OR REGULATION NO 17 ( 3 ) IN THAT, EITHER SUBPARAGRAPH 2 OF ARTICLE 1 ( 1 ) OF THE DECISION DOES NOT ACCURATELY DESCRIBE THE COURSES OF CONDUCT WHICH CONSTITUTE THE INFRINGEMENT AND WHICH THE APPLICANTS ARE CALLED UPON TO PUT AN END TO UNDER ARTICLE 2 OF THE DECISION, OR THAT IT IS IMPOSSIBLE TO ASCERTAIN FROM THIS LATTER PROVISION, EVEN IF IT IS CONSIDERED IN THE LIGHT OF THE STATEMENT OF REASONS UPON WHICH THE DECISION IS BASED, WHETHER SALES FROM PRODUCER TO PRODUCER, OWING TO THE FACT THAT THEY HAVE BEEN TREATED AS BEING UNLAWFUL PER SE, MUST BE DISCONTINUED .

122 IN ORDER TO EVALUATE THIS SUBMISSION IT IS ADVISABLE TO REFER NOT ONLY TO THE OPERATIVE PART OF THE DECISION WHICH IS OF NECESSITY CONCISE BUT ALSO TO THE STATEMENT OF THE REASONS UPON WHICH THE DECISION IS BASED .

123 IF THE OPERATIVE PART OF THE DECISION, WHICH IS CRITICIZED, IS CONSIDERED IN THE LIGHT OF THE STATEMENT OF REASONS, IT SHOWS WITH SUFFICIENT CLARITY CONDUCT FOR WHICH THE APPLICANTS ARE BLAMED AND WHICH THEY MUST PUT AN END TO PURSUANT TO ARTICLE 2 OF THE DECISION .

124 SO FAR IN PARTICULAR AS THE DELIVERIES FROM PRODUCER TO PRODUCER ARE CONCERNED, IT HAS ALREADY BEEN STATED THAT THEY WERE NOT REGARDED AS BEING PROHIBITED AS SUCH, BUT THAT THE COMMISSION INFERRED THEIR ILLEGALITY FROM THE FACT THAT THEY ARE CONSTITUENT PARTS OF CONCERTED PRACTICES .

125 THIS SUBMISSION MUST BE REJECTED .

SECTION 3 : SUBMISSIONS ON THE SUBSTANCE OF THE CASE

I - INFRINGEMENT OF ARTICLE 85 OF THE TREATY

126 THE ESSENCE OF THE SUBMISSIONS PUT FORWARD BY SU, CSM, RT AND PFEIFER UND LANGEN IS THAT, IN THE ABSENCE OF ANY CONCERTED ACTION, THE COURSES OF CONDUCT FOR WHICH THE APPLICANTS ARE BLAMED DO NOT AMOUNT TO CONCERTED PRACTICES, SO THAT BY APPLYING ARTICLE 85 OF THE TREATY TO THESE COURSES OF CONDUCT THE COMMISSION WAS IN BREACH OF THIS PROVISION .

1 . SUMMARY OF THE RELEVANT STATEMENT IN THE DECISION

127 THE PRACTICES, FOR WHICH THE APPLICANTS OR SOME OF THEM ARE BLAMED, CAN BE SUBDIVIDED INTO THREE GROUPS OF ACTIONS OR OMISSIONS .

128 THE FIRST COMPLAINT MADE AGAINST THEM IS THAT THEY CHANNELLED VERY NEARLY ALL EXPORTS IN THE NETHERLANDS TO SPECIFIC CONSIGNEES OR DESTINATIONS, NAMELY NETHERLANDS PRODUCERS, CERTAIN INDUSTRIES, WHICH THESE PRODUCERS HAD PERMITTED THEM TO SUPPLY, AND FOR DENATURING OR EXPORT AT A LATER DATE TO THIRD COUNTRIES .

129 FURTHER THEY ARE BLAMED FOR HAVING REFUSED TO SUPPLY OPERATORS WISHING TO IMPORT SUGAR INTO A NEIGHBOURING MEMBER STATE .

130 FINALLY THE COMMISSION MADE THE COMPLAINT AGAINST RT, ON THE ONE HAND, AND SU AND CSM ON THE OTHER HAND, THAT THEY RESPECTIVELY COMPELLED BELGIAN AND NETHERLANDS DEALERS TO ADOPT THEIR POLICY .

2 . EXAMINATION OF THE SUBMISSION

A - THE RELATIONS BETWEEN RT, ON THE ONE HAND, AND SU AND CSM, ON THE OTHER HAND

( A ) THE EVIDENCE

( AA ) THE EVIDENCE RELATING TO THE ACTUAL CONDUCT OF THE APPLICANTS

1 . CHANNELLING OF BELGIAN EXPORTS TO SPECIFIC CONSIGNEES OR DESTINATIONS

131 IT IS CLEAR FROM SEVERAL DOCUMENTS ON THE COURT'S FILE THAT RT AND OTHER BELGIAN PRODUCERS WHICH IT CONTROLS ( RAFFINERIE NOTRE-DAME AT OREYE; SUCRERIES DES FLANDRES AT MOERBEKE-WAAS ), IN GENERAL AND IN CONNEXION WITH SPECIFIC DELIVERIES TO NETHERLANDS CUSTOMERS OTHER THAN SU OR CSM SYSTEMATICALLY LAID DOWN THAT EXPORT AND HOTTLET SHOULD ONLY DELIVER THE AMOUNTS IN QUESTION TO CERTAIN GROUPS OF CONSIGNEES OR CERTAIN DESTINATIONS .

132 THUS RT IN A LETTER TO EXPORT OF 24 JULY 1969 ( ANNEX I 43 TO THE STATEMENTS OF DEFENCE ), AFTER HAVING REMINDED THIS FIRM THAT IT 'INFORMED IT EARLIER OF OUR POLICY TOWARDS OUR FOREIGN COLLEAGUES' FORBIDS THEM TO EXPORT TO THE NETHERLANDS, FOR THE CONSUMER MARKET, THE AMOUNTS OF SUGAR ORIGINALLY SOLD FOR DENATURING BUT WHICH CAN NO LONGER BE USED FOR THIS PURPOSE BECAUSE OF THE ABOLITION OF THE DENATURING PREMIUM .

133 THE MINUTES DATED 23 APRIL 1970 OF A MEETING BETWEEN THIS COMPANY AND RT ON 20 APRIL 1970 ( ANNEX I 74 OF THE STATEMENTS OF DEFENCE ) WHICH EXPORT DREW UP, STATE THAT 'MR ROLIN OF RT TOOK EXCEPTION TO EXPORT'S OPERATIONS DURING THE 1969/70 MARKETING YEAR IN THE NETHERLANDS AND TO THE PURCHASES FROM INDEPENDENT MANUFACTURERS NOT LONG BEFORE THE COMMENCEMENT OF THE SUGAR MARKETING YEAR '. THIS PASSAGE CAN ONLY BE UNDERSTOOD IN THE CONTEXT OF THE OTHER DOCUMENTS ON THE COURT'S FILE AS MEANING THAT RT BLAMED EXPORT FOR HAVING SUPPLIED, POSSIBLY WITH THE HELP OF BELGIAN MANUFACTURERS INDEPENDENT OF RT, NETHERLANDS CUSTOMERS OTHER THAN THOSE TO WHICH RT INTENDED TO RESTRICT ITS EXPORTS .

134 RT IN A TELEX MESSAGE TO EXPORT OF 20 AUGUST 1970 ( ANNEX I 82 TO THE STATEMENTS OF DEFENCE ), AFTER HAVING TAKEN NOTE THAT EXPORT HAD ACCORDED ITS AGREEMENT WITH THE POLICY TO BE ADOPTED ON THE NETHERLANDS MARKET, INFORMS THIS FIRM THAT 'WE ARE THEREFORE MAKING SUGAR AVAILABLE TO YOU FOR THE NETHERLANDS CONDENSED MILK INDUSTRY ...'.

135 EXPORT IN A TELEX MESSAGE OF 20 AUGUST 1970 ( ANNEX I 83 TO THE STATEMENTS OF DEFENCE ) STATES THAT IT AGREES TO COMPLY WITH THE 'CARTEL' CONCLUDED BETWEEN RT AND THE NETHERLANDS PRODUCERS AND MAKES IT CLEAR THAT UNDER THE TERMS OF THIS CARTEL IT MUST NOT SUPPLY IN THE NETHERLANDS SUGAR 'FOR HUMAN CONSUMPTION' OR 'THE SWEET MANUFACTURING INDUSTRY', WHEREAS IT REMAINS FREE TO DO BUSINESS WITH THE MILK PROCESSING AND CHEMICAL INDUSTRY AS WELL AS THE 'DENATURING TRADE '.

136 THE MILK PRODUCTS INDUSTRY IS MENTIONED, SOMETIMES TOGETHER WITH SU, AS THE ONLY NETHERLANDS CUSTOMER TO BE TAKEN INTO ACCOUNT IN A SERIES OF OTHER DOCUMENTS, NAMELY A TELEX MESSAGE FROM RT TO EXPORT OF 20 AUGUST 1970, A CONFIRMATION OF SALE BY EXPORT TO JACOBSON OF 1 OCTOBER 1970, A TELEX MESSAGE FROM EXPORT TO JACOBSON OF THE SAME DATE, TWO LETTERS FROM OREYE TO EXPORT OF 2 AND 7 OCTOBER 1970, A CONTRACT FOR SALE OF HOTTLET OF 16 DECEMBER 1970, NINE PURCHASE CONTRACTS OR CONTRACTS FOR SALE ENTERED INTO BY EXPORT OR HOTTLET WITH RT, OTHER BELGIAN MANUFACTURERS OR JACOBSON BETWEEN 16 DECEMBER 1970 AND 7 JANUARY 1972, A TELEX MESSAGE FROM EXPORT TO RT OF 17 SEPTEMBER 1970, A LETTER FROM EXPORT TO OREYE OF 5 OCTOBER 1970, A TELEX MESSAGE FROM EXPORT TO RT OF 21 SEPTEMBER 1970 ( ANNEXES I 84, 88, 89, 91 TO 97, 100 TO 104, 112 TO 114 TO THE STATEMENTS OF DEFENCE ).

137 A CONFIRMATION OF PURCHASE FROM EXPORT TO RT OF 5 OCTOBER 1970 ( ANNEX I 128 TO THE STATEMENTS OF DEFENCE ) READS : 'DESTINATION : HOLLAND, IN PRINCIPLE ONLY THE MILK PROCESSING INDUSTRY, SUGAR INTENDED FOR THE ULTIMATE TAKERS-PURCHASERS-CONSUMERS WHICH THE NETHERLANDS SUGAR INDUSTRY PERMITS TO BE SUPPLIED ...'.

2 . REFUSAL TO SUPPLY

138 SOME OF THE DOCUMENTS CONFIRM THIS DESCRIPTION OF RT'S RESTRICTIVE POLICY BECAUSE THEY SHOW THAT THEY SOMETIMES REFUSED TO ACCEPT OFFERS TO PURCHASE FROM NETHERLANDS OPERATORS OTHER THAN SUGAR PRODUCERS AND THE MILK PRODUCTS AND CHEMICAL INDUSTRIES .

139 THUS EITHER RT OR EXPORT OR THE SUGAR MARKETING ORGANIZATION ( LE COMPTOIR SUCRIER ) OF ANTWERP, BY LETTERS OF 14, 23 AUGUST, 2 AND 3 SEPTEMBER 1968 ( ANNEXES I 44 TO 47 TO THE STATEMENTS OF DEFENCE ), ACTING IN ACCORDANCE WITH INSTRUCTIONS FROM RT OR OTHER BELGIAN PRODUCERS CONTROLLED BY RT REFUSED OFFERS TO PURCHASE FROM SUCH OPERATORS, ON THE GROUND THAT THE AMOUNTS AVAILABLE LEFT NO SCOPE FOR EXPORT .

140 EXPORT CONFIRMS IN AN INTERNAL MEMORANDUM OF 23 APRIL 1970 ( ANNEX I 75 TO THE STATEMENTS OF DEFENCE ) THAT 'THE REFINERS' POLICY MAKES IT IMPOSSIBLE' TO TAKE ADVANTAGE OF THE OPPORTUNITIES TO EXPORT 'ON THE FRONTIER REGIONS OF BENELUX' IN SPITE OF THE FACT THAT THERE IS A LARGE DEMAND IN THE NETHERLANDS .

3 . THE OBLIGATION IMPOSED BY RT ON BELGIAN DEALERS AND BY SU AND CSM ON NETHERLANDS DEALERS TO ADOPT THE POLICY DESCRIBED ABOVE

141 SO FAR AS THE RELATIONS BETWEEN RT AND THE BELGIAN DEALERS ARE CONCERNED MOST OF THE DOCUMENTS QUOTED SHOW THAT RT INSISTED THAT THESE DEALERS, AND IN PARTICULAR EXPORT, ONLY SUPPLY SUGAR WITHIN THE NETHERLANDS TO NETHERLANDS PRODUCERS, THE MILK PROCESSING INDUSTRY, THE CHEMICAL INDUSTRY OR FOR THE PURPOSE OF DENATURING .

142 EXPORT IN A TELEX MESSAGE TO RT OF 19 AUGUST 1970 ( ANNEX I 81 TO THE STATEMENTS OF DEFENCE ) SAYS 'HOLLAND : ON BASIS OF THE NETHERLANDS' IMPORT REQUIREMENTS OF EEC SUGAR, WE AGREE PRINCIPLE MENTIONED AT LUNCH THE DAY BEFORE YESTERDAY TO CARRY ON BUSINESS IN ACCORDANCE WITH YOUR PLAN, THAT IS TO SAY DELIVERIES BETWEEN SUGAR PRODUCERS THROUGH TRADITIONAL BELGO-NETHERLANDS TRADING ORGANIZATIONS, ON TERMS SATISFACTORY FOR EXPORT . TO GIVE EFFECT TO YOUR PROPOSAL, WE ARE GETTING IN TOUCH WITH NETHERLANDS BUSINESS HOUSES ON THESE QUESTIONS ...'.

143 RT BY A TELEX MESSAGE OF THE SAME DATE IN ANSWER TO THE BEFOREMENTIONED TELEX MESSAGE ( ANNEX 82 TO THE STATEMENTS OF DEFENCE ), AFTER HAVING STATED THAT IT WAS 'VERY PLEASED INDEED' WITH EXPORT'S STATEMENT THAT IT WAS IN AGREEMENT, GOES ON TO SAY THAT 'WE ARE THEREFORE MAKING SUGAR AVAILABLE TO YOU FOR THE NETHERLANDS CONDENSED MILK INDUSTRY TO BE HANDLED THROUGH THE LONG ESTABLISHED TRADE ... ON THE OTHER HAND IF THE NETHERLANDS SUGAR INDUSTRY WERE TO ASK US TO SUPPLY ITS OWN REQUIREMENTS, ANY EXPORTS OF BELGIAN SUGAR WOULD LIKEWISE BE HANDLED WITH THE HELP OF OUR BUSINESS HOUSES . IT FOLLOWS FROM THE BEFOREMENTIONED ARRANGEMENTS THAT YOU WILL REFRAIN FROM MAKING ANY OTHER INITIATIVES ON THE NETHERLANDS MARKET SO THAT THE PATTERN OF THIS MARKET IS NOT DISTURBED '.

144 EXPORT REPLIED BY A TELEX MESSAGE OF 20 AUGUST 1970 ( ANNEX I 83 TO THE STATEMENTS OF DEFENCE ) GIVING PARTICULARS OF THE TERMS OF THE ARRANGEMENTS MADE AS FOLLOWS : 'EXPORT CONFIRMS THAT IT AGREES TO FOLLOW RT ... IN WORKING OUT AN AGREEMENT WITH SU AND CSM ... FOR THE 1970/71 SUGAR MARKETING YEAR UPON THE FOLLOWING LINES :

1 . EXPORT GIVES UP DEALING IN BELGIAN SUGAR WITH NETHERLANDS PURCHASER-CONSUMERS IN CONNEXION WITH WHAT WE CALL THE PARTICULAR REQUIREMENTS IN THE NETHERLANDS, THAT IS TO SAY, ON THE ONE HAND, FOR SUGAR IN ITS ORIGINAL STATE FOR HUMAN CONSUMPTION AND, ON THE OTHER HAND, FOR SUGAR FOR THE FACTORIES MANUFACTURING SWEETS TO BE CONSUMED IN THE NETHERLANDS ... THIS SWEET MANUFACTURING INDUSTRY DOES NOT INCLUDE THE MILK PROCESSING INDUSTRY . THE DENATURING TRADE AND THE CHEMICAL INDUSTRY ARE ALSO EXCLUDED FROM THE TRADE WHICH EXPORT HAS GIVEN UP .

2 . GIVING UP THIS TRADE BY EXPORT IS LINKED ... SO FAR AS

2 . GIVING UP THIS TRADE BY EXPORT IS LINKED ... SO FAR AS THE NETHERLANDS IMPORT REQUIREMENTS OF EEC SUGAR ARE CONCERNED ... WITH THE CONDITION THAT THE DELIVERIES TO BE CARRIED OUT BETWEEN BELGIAN AND NETHERLANDS SUGAR MANUFACTURERS IN ORDER TO SUPPLY THIS NETHERLANDS MARKET SHALL BE EFFECTED THROUGH THE LONG ESTABLISHED BELGIAN AND NETHERLANDS TRADE ...'.

145 WITH REGARD TO THE RELATIONS BETWEEN SU AND CSM, ON THE ONE HAND, AND THE NETHERLANDS DEALERS, ON THE OTHER HAND, A NOTE OF 3 SEPTEMBER 1970 SENT BY MR KRONACKER OF EXPORT TO MR ROLIN OF RT ( ANNEX I 86 TO THE STATEMENTS OF DEFENCE ) REFERS TO A STATEMENT OF MR ROLIN THAT 'THE THREE TRADITIONAL NETHERLANDS IMPORTERS GAVE AN UNDERTAKING TO SU AND CENTRALE ( CSM ) NOT TO IMPORT SUGAR FOR CONSUMPTION IN THE NETHERLANDS EXCEPT WITH THEIR CONSENT' AND, ON THE OTHER HAND, THAT 'HE ( MR ROLIN ) WAS GIVEN AN UNDERTAKING BY CSM AND SU THAT, IF THERE IS ANY DEMAND FOR SUGAR FOR CONSUMPTION, THESE FIRMS WILL APPROACH RT IN ORDER TO ENSURE THAT THIS DEMAND IS MET AND RT UNDERTAKES TO DO BUSINESS THROUGH US', THAT IS TO SAY THROUGH EXPORT .

GROUNDS CONTINUED UNDER DOC.NUM : 673J0040.1

146 A TELEX MESSAGE OF 24 SEPTEMBER 1970 FROM JACOBSON TO EXPORT ( ANNEX I 87 TO THE STATEMENTS OF DEFENCE ) STATES THAT 'THE SUGAR OF WHICH WE HAVE TO TAKE DELIVERY IS INTENDED FOR PURCHASERS WHICH THE NETHERLANDS INDUSTRY WILL READILY AGREE CAN BE SUPPLIED '.

147 A TELEX MESSAGE FROM EXPORT TO JACOBSON OF 1 OCTOBER 1970, WHICH CONFIRMS A SALE ( ANNEX I 89 OF THE STATEMENTS OF DEFENCE ) STATES UNDER THE HEADING 'SPECIAL CLAUSES', THAT 'THE EXCLUSIVE RIGHT GRANTED BY RT' - THAT IS TO SAY THE EXCLUSIVE RIGHT TO SELL ITS GRANULATED SUGAR WHICH IT GRANTED EXPORT AND HOTTLET FOR THE 1970/71 MARKETING YEAR - 'DERIVES FROM AN UNDERTAKING GIVEN BY THE THREE OLD ESTABLISHED NETHERLANDS BUSINESS HOUSES THAT BELGIAN GRANULATED SUGAR COMPRISED IN THIS AND LATER CONTRACTS IN THE 1970/71 MARKETING YEAR WILL ONLY BE DELIVERED TO THE ULTIMATE TAKERS-PURCHASERS-CONSUMERS WHICH THE NETHERLANDS SUGAR INDUSTRY ( CSM - SU ) AGREES CAN BE SUPPLIED '.

( BB ) THE EVIDENCE RELATING TO THE QUESTION WHETHER THE CONDUCT REFERRED TO ABOVE WAS CONCERTED

148 SOME OF THE DOCUMENTS QUOTED ABOVE MENTION THE EXISTENCE OF A CONCERTED ACTION, NAMELY THE TELEX MESSAGE FROM EXPORT TO RT OF 20 AUGUST 1970, THE NOTE FROM EXPORT TO RT OF 3 SEPTEMBER 1970, THE TELEX MESSAGE FROM JACOBSON TO EXPORT OF 24 SEPTEMBER 1970, THE TELEX MESSAGE FROM EXPORT TO JACOBSON OF 1 OCTOBER 1970 AND THE CONFIRMATION OF PURCHASE SENT BY EXPORT TO RT ON 5 OCTOBER 1970 .

149 A REPORT OF A DISCUSSION BETWEEN REPRESENTATIVES OF RT AND EXPORT ON 20 APRIL DRAWN UP BY EXPORT ( ANNEX I 74 TO THE STATEMENTS OF DEFENCE ) MENTIONS 'OBLIGATIONS UNDERTAKEN BY RT WITHIN THE FRAMEWORK ... OF THE CONCERTED ACTION BETWEEN EUROPEAN REFINERS' BY VIRTUE OF WHICH 'A SERIES OF DIRECT TRANSACTIONS BETWEEN REFINERS TO THE PRODUCER' - THE LAST TWO WORDS SHOULD PROBABLY READ 'OR PRODUCERS' - 'CEASE TO FORM PART OF THE BUSINESS RELATIONS BETWEEN RT AND EXPORT' IN ... THE NETHERLANDS ( ON THE ONE HAND THE MANUFACTURE OF CSM TYPE LUMP SUGAR WITH IF NECESSARY EXCHANGE OF THE RAW MATERIAL OR A CERTIFICATE OF EXCHANGE, ON THE OTHER HAND, 'SUPPLYING GRANULATED SUGAR FOR INDUSTRIALISTS TO CUSTOMERS OF CSM/SU, AT THE REQUEST OF AND THROUGH THE LATTER )'.

150 IN A REPORT BY EXPORT DATED 6 MAY 1970 OF THE DISCUSSIONS BETWEEN REPRESENTATIVES OF THE SAME FIRMS ON 30 APRIL 1970 ( ANNEX I 76 TO THE STATEMENTS OF DEFENCE ) THERE IS THE SENTENCE 'THE BASIC PRINCIPLE ABOUT WHICH MR MAISIN' OF RT 'IS ADAMANT IS THE FOLLOWING ONE : EXPORT MUST ADOPT RT'S POLICY TOWARDS ITS EUROPEAN PARTNERS . HE DEFINES THIS POLICY AS FOLLOWS : NO MOVEMENT OF GOODS FROM COUNTRY TO COUNTRY SAVE BY AGREEMENT BETWEEN PRODUCER AND PRODUCER '.

151 A TELEX MESSAGE FROM RT TO EXPORT OF 20 AUGUST 1970 ( ANNEX I 84 TO THE STATEMENTS OF DEFENCE ) STATES THAT : 'IN THE CASE OF THE NETHERLANDS IMPORT REQUIREMENTS OF SUGAR FOR CONSUMPTION IN THE NETHERLANDS, YOU CEASE TO DEAL WITH ANY TRANSACTIONS OTHER THAN THE REQUESTS MADE BY THE NETHERLANDS SUGAR INDUSTRY WHICH INTENDS TO KEEP CONTROL OF THIS MARKET . THE NETHERLANDS SUGAR INDUSTRY, AS YOU MOREOVER HAVE CONFIRMED TO US, TOLD US THAT AT PRESENT THE SITUATION IN THE NETHERLANDS DOES NOT JUSTIFY IMPORT OPERATIONS . SINCE WE DO NOT INTEND TO DO ANYTHING AT ALL IN CONNEXION WITH CONSUMPTION IN THE NETHERLANDS WHICH IS NOT APPROVED BY OUR NETHERLANDS COLLEAGUES, THERE IS NO NEED TO EXAMINE AT THE MOMENT TRANSACTIONS IN BELGIAN SUGAR FOR THESE OUTLETS ... SUPPLYING THE MILK PRODUCTS INDUSTRY IS ANOTHER MATTER ...'

152 RT POINTS OUT TO EXPORT IN A LETTER OF 31 AUGUST 1970 ( ANNEX I 85 TO THE STATEMENTS OF DEFENCE ) THAT 'SO FAR AS THE NETHERLANDS ARE CONCERNED WE DO NOT WANT TO DO ANYTHING WHICH MIGHT UPSET SU OR CSM, JUST AS THEY DO NOT WANT TO DO ANYTHING WHICH WOULD DISTURB US '.

153 EXPORT IN A LETTER OF 10 OCTOBER 1970 TO JACOBSON CONFIRMING A SALE ( ANNEX I 88 TO THE STATEMENTS OF DEFENCE ) - AFTER HAVING POINTED OUT THAT RT GRANTED THIS FIRM AND HOTTLET FOR THE 1970/71 MARKETING YEAR THE EXCLUSIVE RIGHT TO SELL ITS GRANULATED SUGAR FOR EXPORT AND AFTER EMPHASIZING THAT RT DID NOT INTEND TO DO ANYTHING ON THE NETHERLANDS MARKET 'WHICH HAS NOT BEEN APPROVED BY ITS TWO NETHERLANDS COLLEAGUES' - STATES THAT THESE EXCLUSIVE RIGHTS 'DERIVE FROM AN UNDERTAKING GIVEN BY THREE OLD ESTABLISHED NETHERLANDS BUSINESS HOUSES THAT THE BELGIAN GRANULATED SUGAR COMPRISED IN THIS AND THE LATER CONTRACTS IN THE 1970/71 MARKETING YEAR ARE INTENDED TO BE DELIVERED TO THE ULTIMATE TAKERS-PURCHASERS-CONSUMERS WHICH THE NETHERLANDS SUGAR INDUSTRY ( CSM - SU ) AGREES CAN BE SUPPLIED '.

154 EXPORT IN A TELEX MESSAGE TO A GERMAN DEALER OF 14 SEPTEMBER 1970 - WHICH REFERS TO A TELEX MESSAGE OF 11 SEPTEMBER IN WHICH THE SAID DEALER REFERRED TO 'DIFFERENT CUSTOMERS IN THE NETHERLANDS ... WHICH URGENTLY NEED OFFERS' ( CF . ANNEXES I 107, 108 TO THE STATEMENTS OF DEFENCE ) - MENTIONS INTER ALIA THAT 'REGARDING THE NETHERLANDS MARKET FOR WHICH YOU ASKED US ALSO OFFERS AND WROTE TO US FOR RATHER IMMEDIATE SELLING POSSIBILITIES OF AROUND 15 000 TONS OF BELGIAN CRYSTAL SUGAR ON THE 1970/71 CROP, WE CONFIRM YOU POSITIVELY THAT OUR MAIN BELGIAN SUGAR MANUFACTURERS, THE RT GROUP, WORKING THEMSELVES IN CLOSE CONTACT ( THROUGH TRADE INTERMEDIARIES ) WITH THE NETHERLANDS INDUSTRY GROUPS CSM AND SU, FOR THE NETHERLANDS CONSUMPTION HOME MARKET, ARE NOT PRESENTLY SELLERS FOR SUCH DESTINATION, OUTSIDE THEIR TRADITIONAL REFINERS CHANNEL, AND ANYWAY WAITING FOR NETHERLANDS SUGAR MANUFACTURERS EVENTUAL DEMANDS '.

155 FURTHER THE EXISTENCE OF A CONCERTED ACTION BETWEEN RT AND THE NETHERLANDS PRODUCERS IS ALSO SUPPORTED DIRECTLY AND INDIRECTLY BY CERTAIN OTHER DOCUMENTS ( LETTER FROM THE SUGAR MARKETING ORGANIZATION OF ANTWERP ( COMPTOIR SUCRIER D'ANVERS )) TO A NETHERLANDS CUSTOMER OF 3 SEPTEMBER 1968; INTERNAL MEMORANDUM OF EXPORT OF 23 APRIL 1970; TELEX MESSAGE FROM EXPORT TO RT OF 20 AUGUST 1970; TELEX MESSAGE FROM EXPORT TO RT OF 20 AUGUST 1970; MEMORANDUM FROM EXPORT TO RT OF 3 SEPTEMBER 1970; TELEX MESSAGE FROM JACOBSON TO EXPORT OF 24 AND 30 SEPTEMBER 1970; TELEX MESSAGE FROM EXPORT TO RT OF 14 AND 17 SEPTEMBER 1970; TELEX MESSAGE FROM EXPORT TO JACOBSON OF 1 OCTOBER 1970; CONFIRMATION OF A PURCHASE BY EXPORT TO NAVEAU OF 31 JULY 1970 : ANNEXES I 47, 75, 83, 86, 87, 89, 90, 108, 112, 128, 129 TO THE STATEMENTS OF DEFENCE ).

( B ) EVALUATION OF THIS EVIDENCE

( AA ) ITS EVIDENTIAL VALUE

156 RT SUBMITS THAT, ALTHOUGH THE BEFOREMENTIONED DOCUMENTS OF EXPORT CORRECTLY REPRODUCE THE STATEMENTS MADE BY RT TO THIS FIRM AND THE DOCUMENTS RELIED ON BY THE COMMISSION ARE 'DAMNING', THEY MUST NOT HOWEVER BE TAKEN 'LITERALLY '.

157 AS IN FACT EXPORT HAD UNSUCCESSFULLY TRIED TO OBTAIN FROM RT THE EXCLUSIVE RIGHT TO SELL RT'S SUGAR AND FEARED, WRONGLY, THAT IT WOULD BE GRADUALLY ELIMINATED FROM RT'S OPERATIONS, THE LATTER, IN ORDER TO REDUCE THE TENSION BETWEEN THESE TWO COMPANIES, 'DID NOT WANT TO EXPLAIN FRANKLY TO EXPORT THAT IT WAS IN ITS OWN INTERESTS TO ELIMINATE AGENTS IN CERTAIN TRANSACTIONS' SO THAT IT 'SEEMED COMMERCIALLY SPEAKING TO BE MORE ADVISABLE TO TAKE REFUGE BEHIND ITS FOREIGN COLLEAGUES '.

158 IF THE STATEMENTS IN QUESTION CORRESPONDED TO THE FACTS 'IT WOULD BE VERY NAIVE TO SUGGEST THAT AN UNDERTAKING LIKE ( RT ) CANNOT BE REASONABLY ASSUMED TO HAVE RECORDED THEM IN WRITING '.

159 SU AND CSM TOGETHER SUBMIT THAT CORRESPONDENCE BETWEEN THIRD PARTIES, NAMELY RT AND EXPORT, CANNOT BE USED AGAINST THEM AND IN PARTICULAR BECAUSE RT'S STATEMENTS AS TO THE NEED NOT TO UPSET NETHERLANDS PRODUCERS ARE BASED ON MERE SPECULATION BY RT AND BECAUSE EXPORT, OWING TO THE STRAINED RELATIONS BETWEEN ITSELF AND RT WHICH WERE A MATTER OF COMMON KNOWLEDGE, HAD OBVIOUSLY APPLIED ITSELF TO THE TASK OF PREPARING A CASE DETRIMENTAL TO THE LATTER .

160 ALTHOUGH THE DOCUMENTS IN QUESTION AS WELL AS THE OTHER DOCUMENTS PRODUCED FOR THE COURT'S FILE BY THE COMMISSION SHOW THAT RT AND EXPORT DISAGREED ON THE EXTENT OF THE AREA IN WHICH THE LATTER WAS TO BE ALLOWED TO OPERATE AND ON HOW MUCH FREEDOM OF ACTION IT SHOULD BE PERMITTED TO ENJOY, IT IS DIFFICULT TO ACCEPT THAT RT SIMPLY INVENTED WHAT IT SAID OR WROTE CONCERNING ITS RELATIONS WITH SU AND CSM .

161 SO FAR AS WHAT RT CALLS THE 'NAIVETY' OF ANY WRITTEN ADMISSION OF HAVING ENGAGED IN A CONCERTED ACTION AND ENDEAVOURED TO IMPLEMENT IT, ATTENTION MUST BE DRAWN TO THE FACT THAT IT WOULD BE EVEN MORE UNUSUAL FOR A VERY LARGE PRODUCER TO SIMULATE IN LETTERS AND DOCUMENTS CONDUCT LIKELY TO LAY IT OPEN TO SANCTIONS, MERELY IN ORDER TO REASSURE A DEALER WHO ECONOMICALLY ALMOST WHOLLY DEPENDS UPON IT .

162 FURTHER THE SUMMARY ASSERTION THAT THE STATEMENTS IN ISSUE MUST NOT BE TAKEN 'LITERALLY' LEAVES WIDE OPEN THE QUESTION TO WHAT EXTENT RT INTENDS TO ADMIT OR DENY THE TRUTH OF THESE STATEMENTS, AND CONSEQUENTLY, DOES NOT EVEN AMOUNT TO A SERIOUS ATTEMPT TO REJECT THIS EVIDENCE ADDUCED BY THE COMMISSION .

163 FURTHER IT IS USELESS TO DENY THE EVIDENTIAL VALUE OF THE DOCUMENTS IN QUESTION ON THE GROUND THAT EXPORT RECORDED OR KEPT THEM FOR THE SOLE PURPOSE OF RENDERING RT LIABLE TO BE PROCEEDED AGAINST BY THE COMMISSION .

164 CONTRARY TO THE VIEW OF SU AND CSM 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 .

165 IN PARTICULAR THE STATEMENTS IN THE DOCUMENTS IN DISPUTE TALLY WITH THE ACTUAL WAY THE PARTIES CONCERNED HAVE BEHAVED ON THIS MARKET .

166 HAVING REGARD TO ALL THESE CIRCUMSTANCES IT MUST BE HELD THAT THESE DOCUMENTS FORM A BODY OF CONSISTENT EVIDENCE AND THAT THEIR CONTENTS CORRESPOND, AT LEAST FOR THE MOST PART, TO THE FACTS .

( BB ) THE EXISTENCE OF THE ALLEGED CONCERTED PRACTICES

167 1 . ALL THESE FINDINGS SHOW THAT THE APPLICANTS IN FACT BEHAVED IN THE WAY ALLEGED BY THE COMMISSION .

168 IT CAN THEREFORE BE TAKEN FOR GRANTED THAT ALMOST ALL THE EXPORTS IN THE NETHERLANDS OF RT AND THE PRODUCERS WHICH IT CONTROLS WERE CHANNELLED TO NETHERLANDS SUGAR PRODUCERS, THE MILK PRODUCTS OR CHEMICAL INDUSTRIES OR FOR DENATURING, THAT RT HARDLY EVER SUPPLIED THE LONG ESTABLISHED CUSTOMERS OF THE NETHERLANDS PRODUCERS AND THAT IT FORCED BELGIAN DEALER-IMPORTERS TO ADOPT THIS POLICY OF CHANNELLING DELIVERIES TO SPECIFIC CONSIGNEES .

169 LARGE AMOUNTS WERE CHANNELLED IN THIS WAY TO A RESTRICTED NUMBER OF CONSIGNEES OR DESTINATIONS AS IS SHOWN BY THE ACTUAL FIGURES PRODUCED BY RT IN ANNEX 4 TO ITS REPLY .

170 THESE FIGURES, WHICH EVEN THOUGH THEY ARE SOMETIMES HIGHER AND SOMETIMES LOWER THAN THOSE MENTIONED BY THE COMMISSION, ARE NEVERTHELESS OF THE SAME ORDER OF MAGNITUDE, SHOW THAT RT, DURING THE WHOLE OF THE FOUR MARKETING YEARS TO WHICH THE DECISION REFERS, SUPPLIED SU, CSM AND THE NETHERLANDS MILK PROCESSING INDUSTRY RESPECTIVELY WITH 40 741, 35 099 AND 48 000 METRIC TONS OF REFINED SUGAR, IN THE AGGREGATE WITH 123 840 METRIC TONS, WHICH ARE LARGE FIGURES EVEN IF THE 10 587 METRIC TONS OF GRANULATED SUGAR WHICH CSM CONSIGNED TO RT FOR PROCESSING AND WHICH RT LATER RE-EXPORTED TO THE NETHERLANDS AS REFINED SUGAR ARE DEDUCTED FROM THESE FIGURES .

171 IT EMERGES FROM THE STATISTICS SUBMITTED BY THE COMMISSION ( ANNEX I TO THE REJOINDER IN CASE 47/73, TABLE VI ) THAT THE 'CONTROLLED' DELIVERIES - THAT IS TO SAY THE DELIVERIES FROM PRODUCER TO PRODUCER, TO THE MILK PROCESSING INDUSTRY, FOR DENATURING OR EXPORT AT A LATER DATE TO THIRD COUNTRIES - INCREASED RESPECTIVELY DURING EACH OF THE FOUR MARKETING YEARS IN QUESTION TO 70 PER CENT; 28.4 PER CENT; 79.3 PER CENT AND 70 PER CENT OF THE TOTAL AMOUNT OF BELGIAN EXPORTS TO THE NETHERLANDS; THE COMMISSION STATES THAT THE RELATIVELY LOW FIGURE OF 28.4 PER CENT IS EXPLAINED BY THE FACT THAT IN 1969/70 TWO-THIRDS OF THESE EXPORTS WERE EFFECTED BY BELGIAN PRODUCERS WHO WERE NOT DEPENDENT ON RT .

172 2 . SU AND CSM SUBMIT THAT SINCE THE CONCEPT OF 'CONCERTED PRACTICES' PRESUPPOSES A PLAN AND THE AIM OF REMOVING IN ADVANCE ANY DOUBT AS TO THE FUTURE CONDUCT OF COMPETITORS, THE RECIPROCAL KNOWLEDGE WHICH THE PARTIES CONCERNED COULD HAVE OF THE PARALLEL OR COMPLEMENTARY NATURE OF THEIR RESPECTIVE DECISIONS CANNOT IN ITSELF BE SUFFICIENT TO ESTABLISH A CONCERTED PRACTICE; OTHERWISE EVERY ATTEMPT BY AN UNDERTAKING TO REACT AS INTELLIGENTLY AS POSSIBLE TO THE ACTS OF ITS COMPETITORS WOULD BE AN OFFENCE .

173 THE 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 .

174 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 .

175 THE DOCUMENTS QUOTED SHOW THAT THE APPLICANTS CONTACTED EACH OTHER AND THAT THEY IN FACT PURSUED THE AIM OF REMOVING IN ADVANCE ANY UNCERTAINTY AS TO THE FUTURE CONDUCT OF THEIR COMPETITORS .

176 THEREFORE THE APPLICANTS' ARGUMENT CANNOT BE UPHELD .

177 SU AND CSM ALSO SUBMIT THAT BECAUSE THEIR CONDUCT ON THE MARKET CORRESPONDED TO THE HABITUAL ATTITUDE ADOPTED BY A PRODUCER IN THEIR SITUATION, IT DOES NOT AMOUNT TO A CONCERTED PRACTICE .

178 RT SUBMITS A SIMILAR ARGUMENT BUT IN MORE SPECIFIC TERMS, NAMELY 'THAT ... AN IMPORTANT ELEMENT IN THE LEGAL CONCEPT OF A "A CONCERTED PRACTICE" IS THE CAUSAL CONNEXION WHICH MUST EXIST BETWEEN THE ALLEGED CONCERTED ACTION AND THE PRACTICES WHICH WERE ADOPTED' AND WHICH IS ABSENT 'IF THESE PRACTICES ARE THE NATURAL CONSEQUENCE OF MARKET CONDITIONS WHICH WOULD HAVE BEEN THE SAME EVEN IF THERE HAD BEEN NO CONTACTS BETWEEN PRODUCERS '.

179 THE DOCUMENTS PRODUCED ARE SUFFICIENT PROOF THAT SU AND CSM INTENDED TO WARD OFF THE RISK OF COMPETITION FROM RT, TO WHICH THEY COULD BY NO MEANS BE CERTAIN THAT THEY WOULD NOT BE EXPOSED, IF THERE WAS NO CONCERTED ACTION, HAVING REGARD TO THE CONSIDERABLE OVER-PRODUCTION OF BELGIAN SUGAR, THE SHORT-FALL OF NETHERLANDS PRODUCTION, THE FACT THAT BELGIAN PRICES WERE BELOW NETHERLANDS PRICES, THAT BELGIAN DEALERS WANTED TO EXPORT LARGE AMOUNTS FREELY AND ALSO BEARING IN MIND THE OPPORTUNITY WHICH ALL THESE FACTORS OFFERED RT OF AT LEAST SUPPLYING THE FRONTIER REGIONS OF THE NETHERLANDS .

180 THEREFORE THE CONCERTED ACTION IN QUESTION AND THE PRACTICES WHEREBY IT WAS IMPLEMENTED WERE LIKELY TO REMOVE ANY DOUBTS THE NETHERLANDS PRODUCERS HAD AS TO THEIR CHANCES OF MAINTAINING - TO THE DETRIMENT OF THE EFFECTIVE FREEDOM OF MOVEMENT OF THE PRODUCTS IN THE COMMON MARKET AND OF THE FREEDOM ENJOYED BY CONSUMERS TO CHOOSE THEIR SUPPLIERS - THE POSITION WHICH THEY HAD ESTABLISHED .

181 3 . THE APPLICANTS' SUBMISSION THAT ARTICLE 85 OF THE TREATY DOES NOT PROHIBIT DELIVERIES FROM PRODUCER TO PRODUCER .

182 THIS SUBMISSION IS IRRELEVANT, SINCE THE COMMISSION DOES NOT MAINTAIN THAT SUCH DELIVERIES ARE ILLEGAL PER SE BUT INFERS THAT THESE OPERATIONS ARE ILLEGAL FROM THE FACT THAT THESE DELIVERIES WERE A CONSTITUENT ELEMENT OF THE CONCERTED ACTION .

183 FURTHER, CONTRARY TO THE VIEW EXPRESSED BY SU, IT IS IMMATERIAL THAT THE LATTER, AS IT HAS STATED, PURCHASED MOST OF ITS SUGAR FROM RT NOT DIRECTLY BUT THROUGH INTERMEDIATE TRADERS .

184 IN FACT THE DETERMINING FACTOR IS THAT RT, WHICH CERTAINLY DID NOT GIVE MIDDLEMEN THE RIGHT TO SELECT THE CONSIGNEE, INTENDED TO AND IN FACT DID SUPPLY SU, EVEN THOUGH IT MADE EXPORT AND HOTTLET A PARTY TO THESE TRANSACTIONS .

185 THE DOCUMENTS QUOTED SHOW THAT RT FORCED BELGIAN DEALERS TO ADOPT ITS POLICY OF CHANNELLING BELGIAN EXPORTS TO THE NETHERLANDS, WITH THE RESULT THAT THE PARTICIPATION OF THESE DEALERS IN ALL OR PART OF THE CONTESTED DELIVERIES CANNOT MODIFY THEIR EVALUATION .

186 4 . SU AND CSM SUBMIT THAT THEY WERE NEVER ASKED TO APPROVE THE DESTINATION OF BELGIAN SUGAR TO BE EXPORTED TO THE NETHERLANDS .

187 THIS ARGUMENT, AS IS SHOWN BY THE DOCUMENTS QUOTED, DISREGARDS THE FACT THAT RT AND THE NETHERLANDS PRODUCERS AGREED ON THE BASIC CRITERIA TO BE APPLIED IN CONCERT WHEN SELECTING THE CONSIGNEES OR DESTINATIONS OF BELGIAN DELIVERIES TO THE NETHERLANDS AND IN FACT ADOPTED THEM .

188 5 . THE ARGUMENT OF SU AND OF CSM THAT NOT INCONSIDERABLE QUANTITIES OF BELGIAN SUGAR WERE IMPORTED INTO THE NETHERLANDS OUTSIDE THE SUPPLY SYSTEM WHICH IS CRITICIZED, SUCH AS SUPPLIES NEGOTIATED BY A GERMAN FIRM AND COMING FROM THE PRODUCTION OF BELGIAN MANUFACTURERS OTHER THAN RT, CANNOT EITHER BE TAKEN INTO CONSIDERATION .

189 THE FACT THAT SUCH DELIVERIES TOOK PLACE, WHICH MOREOVER THE COMMISSION DOES NOT DISPUTE, IN NO WAY DEFEATS THE ARGUMENT THAT RT, THE ONLY BELGIAN PRODUCER BLAMED IN THE DECISION, AS WELL AS SU AND CSM ENGAGED IN A CONCERTED PRACTICE CONCERNING THE DESTINATION OF THE BELGIAN COMPANY'S PRODUCTION .

190 6 . FINALLY WITH REGARD TO CSM'S ARGUMENT THAT THE NETHERLANDS PRODUCERS DID NOT AND COULD NOT OFFER RT ANY CONSIDERATION FOR THE POLICY OF TAKING THEIR INTERESTS INTO ACCOUNT WHICH THE LATTER ADOPTED TOWARDS THEM, ATTENTION MUST BE DRAWN TO THE FACT THAT THIS SUBMISSION, AND ITS LEGAL BASIS CAN MOREOVER BE DISPUTED, WOULD ONLY BE LIKELY TO WEAKEN THE FOUNDATION UPON WHICH THE COMPLAINT OF CONCERTED PRACTICES IS BASED, IF THE REST OF THE AVAILABLE EVIDENCE WERE INSUFFICIENT, BUT NOT IF THE EXISTENCE OF SUCH PRACTICES IS CLEARLY APPARENT FROM THE DOCUMENTS ON THE COURT'S FILE .

191 IT EMERGES FROM ALL THESE CONSIDERATIONS THAT THE PRACTICES IN THIS CASE DID NOT IN ANY WAY RESULT FROM INDEPENDENT DECISIONS BY THE PRODUCERS CONCERNED BUT WERE CONCERTED BETWEEN THEM BECAUSE THEY KNOWINGLY SUBSTITUTED FOR THE RISKS OF COMPETITION PRACTICAL COOPERATION BETWEEN THEM, WHICH CULMINATED IN A SITUATION WHICH DID NOT CORRESPOND TO THE NORMAL CONDITIONS OF THE MARKET, EVEN TAKING ACCOUNT OF ITS SPECIAL NATURE, AND ALLOWED NETHERLANDS PRODUCERS TO MAINTAIN POSITIONS WHICH THEY HAD ESTABLISHED 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 .

192 THEREFORE THE APPLICANTS HAVE IN FACT ENGAGED IN CONCERTED PRACTICES HAVING AS THEIR OBJECT AND EFFECT THE PROTECTION OF THE NETHERLANDS MARKET .

( CC ) THE QUESTION WHETHER THE CONCERTED PRACTICES WERE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES AND WHETHER THEY HAD AS THEIR OBJECT OR EFFECT THE PREVENTION, RESTRICTION OR DISTORTION OF COMPETITION WITHIN THE COMMON MARKET

193 THE CONCERTED PRACTICES IN QUESTION HAVE AFFECTED TRADE BETWEEN MEMBER STATES BECAUSE THEY WERE RELATED TO SALES OF SUGAR BETWEEN BELGIUM AND THE NETHERLANDS .

194 THEIR OBJECT AND EFFECT IS TO ENSURE THAT SUGAR MANUFACTURED BY RT OR BY BELGIAN PRODUCERS, WHICH THIS COMPANY CONTROLS, WAS ONLY EXPORTED TO THE NETHERLANDS IN SUCH A WAY THAT IT DID NOT COMPETE THERE WITH SUGAR MANUFACTURED BY NETHERLANDS PRODUCERS .

195 THE OBJECT AND EFFECT OF THE SAID PRACTICES WHICH LIMIT OR CONTROL MARKETS AND ALSO SHARE MARKETS WITHIN THE MEANING OF ARTICLE 85 ( B ) AND ( C ) WAS TO INTERFERE WITH COMPETITION .

( DD ) THE QUESTION WHETHER THE CONCERTED PRACTICES AFFECTED TRADE BETWEEN MEMBER STATES AND INTERFERED APPRECIABLY WITH COMPETITION

196 WITH REGARD TO THE QUESTION WHETHER THE CONCERTED PRACTICES IN QUESTION AFFECTED TRADE BETWEEN MEMBER STATES AND INTERFERED APPRECIABLY WITH COMPETITION IT IS ADVISABLE TO ASCERTAIN WHETHER THERE ARE GROUNDS FOR ASSUMING THAT, IF THE SAID PRACTICES HAD NOT BEEN CARRIED OUT, A LARGE PROPORTION OF THE VERY BIG AMOUNTS, WHICH RT CHANNELLED OR GOT THE BELGIAN DEALERS TO CHANNEL TO THE CONSIGNEES AND DESTINATIONS REFERRED TO ABOVE, WOULD HAVE BEEN SUPPLIED TO OTHER CUSTOMERS ESTABLISHED IN THE NETHERLANDS IN COMPETITION WITH NETHERLANDS PRODUCERS .

197 AN AFFIRMATIVE ANSWER TO THIS QUESTION IS GIVEN BY SOME OF THE DOCUMENTS QUOTED WHICH SHOW THAT, IF RT HAD NOT IMPOSED ITS RESTRICTIVE POLICY ON BELGIAN DEALERS, THEY WOULD HAVE BEEN ABLE AND WILLING TO MAKE SUCH DELIVERIES IN NOT INCONSIDERABLE QUANTITIES .

198 ALL THESE CONSIDERATIONS SHOW THAT RT, SU AND CSM HAVE ENGAGED IN CONCERTED PRACTICES WHICH AFFECTED TRADE BETWEEN MEMBER STATES AND APPRECIABLY INTERFERED WITH COMPETITION, AND HAVE THEREFORE INFRINGED ARTICLE 85 OF THE TREATY .

B - THE RELATIONS BETWEEN PFEIFER UND LANGEN, ON THE ONE HAND, AND SU AND CSM ON THE OTHER HAND

199 SINCE PFEIFER UND LANGEN DENIES THAT IT ALSO CONCERTED ITS COMMERCIAL POLICY WITH SU AND CSM, IT IS ADVISABLE TO CONSIDER WHETHER THE FACTS AND THE DOCUMENTS UPON WHICH THE COMMISSION RELIES PROVE THAT THERE WAS SUCH AN INFRINGEMENT FOR THE PERIOD COMMENCING 1 JULY 1970 WHICH ALONE IS THE RELEVANT PERIOD IN THESE PROCEEDINGS .

200 THE COMMISSION TAKES THE VIEW THAT THE CONCERTED ACTION IS ESTABLISHED, ON THE ONE HAND, BY CERTAIN DOCUMENTS PRODUCED FOR THE COURT'S FILE AND, ON THE OTHER HAND, BY THE VERY LARGE SUPPLIES BY THE COMPANY TO NETHERLANDS PRODUCERS WHEREAS THE QUANTITY OF SUGAR SUPPLIED TO OTHER NETHERLANDS CUSTOMERS WAS MINIMAL .

201 ( A ) AFTER EXTRACTING FROM THE SAID DOCUMENTS THOSE WHICH WERE STRAIGHT AWAY FOUND TO HAVE NO RELEVANCE TO THE COMPLAINT AS SET OUT IN THE OPERATIVE PART OF THE CONTESTED DECISION THERE ARE LEFT TWO INTERNAL MEMORANDA AND 'A NOTE' DRAWN UP BY EXPORT ON 23 APRIL AND 6 MAY 1970 GIVING A REPORT OF DISCUSSIONS BETWEEN THIS FIRM AND RT ( ANNEXES I 74 TO 76 TO THE STATEMENTS OF DEFENCE ).

202 THESE DOCUMENTS RELIED ON BY THE COMMISSION IN THE PRESENT CONTEXT TO PROVE THE REFUSALS BY PFEIFER UND LANGEN TO SUPPLY NETHERLANDS CUSTOMERS WHO WERE NOT PRODUCERS, ONLY REFER SPECIFICALLY TO THE RELATIONS BETWEEN EXPORT AND RT AND ALSO BETWEEN BELGIAN OPERATORS, ON THE ONE HAND, AND POSSIBLE FRENCH, GERMAN, NETHERLANDS AND ITALIAN CUSTOMERS, ON THE OTHER HAND, AND DO NOT REFER AT ALL TO THE COURSE OF CONDUCT ADOPTED OR TO BE ADOPTED ON THE NETHERLANDS MARKET BY GERMAN PRODUCERS .

203 TO THE EXTENT TO WHICH THE SAID DOCUMENTS REFER TO COOPERATION ON A MUCH LARGER SCALE THROUGHOUT THE WHOLE OF THE COMMUNITY THE EXPRESSIONS USED BY EXPORT 'THE CONCERTED ACTION BETWEEN EUROPEAN REFINERS' AND 'TIRLEMONT ENTERED INTO AN AGREEMENT WITH THE OTHER REFINERS OF THE COMMON MARKET UNDER WHICH THEY GRANTED EACH OTHER EXCLUSIVE RIGHTS, AND THIS AGREEMENT SHOWS THAT MARKETING IN THE COUNTRY OF DESTINATION IS RESERVED TO THE REFINERS OF THAT COUNTRY' - WITHOUT PREJUDICE TO THEIR POSSIBLE RELEVANCE IN OTHER CONTEXTS, - APPEAR TO BE TOO VAGUE AND GENERAL EVEN TO CONSTITUTE EVIDENCE OF A PRACTICE BETWEEN PFEIFER UND LANGEN AND SU OR CSM AND ESPECIALLY AS THE COMMISSION HAS ITSELF EXPRESSLY STATED THAT IT DROPPED ITS ORIGINAL ARGUMENT THAT THERE WAS A GENERAL CONCERTED ACTION BETWEEN ALL THE LARGE COMMUNITY SUGAR PRODUCERS AND ONLY FOUND THAT THERE WERE A SERIES OF INFRINGEMENTS IN SPECIFIC LOCALITIES .

204 ( B ) WITH REGARD TO THE SUGAR SUPPLIED BY PFEIFER UND LANGEN TO THE NETHERLANDS THE COMMISSION HAS NOT CHALLENGED THE FIGURES PRODUCED BY PFEIFER UND LANGEN WHICH SHOW THAT DURING THE 1970/71 AND 1971/72 MARKETING YEARS THE LATTER ONLY SUPPLIED LARGE QUANTITIES ( ALTOGETHER 15 000 METRIC TONS ) TO THE LIMAKO UNDERTAKING, A SUBSIDIARY OF SU, WHEREAS THE AMOUNTS SUPPLIED DURING THIS PERIOD TO CSM ( 1.4 METRIC TONS ) AND TO THIRD PARTIES ( 1.05 METRIC TONS ) WERE MINIMAL .

205 IT IS NOT DENIED THAT LIMAKO CARRIES ON BUSINESS MAINLY AS AN EXPORTER OF SUGAR, THAT THE BEFOREMENTIONED 15 000 METRIC TONS - AS THE TYPE OF PACKING CHOSEN AND THE FACT THAT PFEIFER UND LANGEN DELIVERED THIS TONNAGE DIRECT TO A WAREHOUSE AT THE PORT OF ROTTERDAM MOREOVER PROVE - WERE INITIALLY INTENDED TO BE AND WERE IN FACT RE-EXPORTED TO THIRD COUNTRIES EXCEPT FOR A LIMITED AMOUNT WHICH SU PROCESSED INTO LIQUID SUGAR .

206 THEREFORE, AS THE DELIVERY IN ISSUE IS NOT A DELIVERY FROM PRODUCER TO PRODUCER WITHIN THE MEANING ADOPTED BY THE CONTESTED DECISION - THAT IS TO SAY A DELIVERY TO ANOTHER OPERATOR IN HIS CAPACITY AS A PRODUCER AND DESIGNED TO AVOID ANY COMPETITION WITH HIM ON HIS 'OWN' MARKET - IT CANNOT BE REGARDED AS ADEQUATE EVIDENCE OF ANY CONCERTED ACTION BETWEEN SU AND PFEIFER UND LANGEN .

207 ( C ) WITH REFERENCE TO THE FACT THAT ONLY A SMALL AMOUNT OF SUGAR WAS SUPPLIED BY PFEIFER UND LANGEN TO NETHERLANDS CUSTOMERS WHO WERE NOT PRODUCERS, THERE WAS ACCORDING TO THE COMMISSION'S EVIDENCE ( CF . ANNEX I TO THE REJOINDER IN CASE 56/73, TABLE I ) A SHORT-FALL IN GERMAN PRODUCTION IN 1970/71, WHEREAS IN 1971/72 BOTH GERMAN AND NETHERLANDS PRODUCTION WAS IN SURPLUS .

208 FURTHER THE GERMAN PRICE LEVEL DOES NOT APPEAR TO HAVE BEEN BELOW THAT OF THE NETHERLANDS .

209 IN THESE CIRCUMSTANCES IT MAY NOT HAVE BEEN IN THE INTERESTS OF PFEIFER UND LANGEN TO INVESTIGATE THE NETHERLANDS MARKET IN ORDER TO SELL SUGAR THERE ON AN OCCASIONAL AND SPORADIC BASIS INSTEAD OF CONTINUING TO SUPPLY ITS LONG ESTABLISHED CUSTOMERS WHO USUALLY PROVIDED IT WITH A GUARANTEED MARKET .

210 THE EFFECT OF ALL THE PRECEDING ARGUMENTS IS THAT, SINCE THE COMMISSION HAS NOT ADDUCED ADEQUATE EVIDENCE OF THE INFRINGEMENT FOR WHICH IT BLAMES PFEIFER UND LANGEN UNDER SUBPARAGRAPH 2 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION, THIS PROVISION MUST BE ANNULLED TO THE EXTENT TO WHICH IT STATES THAT PFEIFER UND LANGEN, ON THE ONE HAND, AND SU AND CSM ON THE OTHER HAND, ENGAGED IN A CONCERTED ACTION .

II - INFRINGEMENT OF REGULATION NO 26 OF THE COUNCIL

211 CSM AND RT SUBMIT THAT, EVEN IF IT IS ASSUMED THAT THE COURSES OF CONDUCT TO WHICH EXCEPTION IS TAKEN ARE CONCERTED PRACTICES WITHIN THE MEANING OF ARTICLE 85 OF THE TREATY, THEY ARE NONE THE LESS LAWFUL BECAUSE THEY COME WITHIN THE SECOND EXCEPTION SPECIFIED IN THE FIRST SENTENCE OF ARTICLE 2 ( 1 ) OF REGULATION NO 26, ACCORDING TO WHICH ARTICLE 85 ( 1 ) OF THE TREATY SHALL NOT APPLY, INTER ALIA, TO CONCERTED PRACTICES WHICH ARE 'NECESSARY FOR ATTAINMENT OF THE OBJECTIVES SET OUT IN ARTICLE 39 OF THE TREATY '.

212 1 . CSM SUBMITS THAT WITHOUT THE PURCHASES FROM RT ITS PLANT AND DISTRIBUTIVE NETWORK WOULD NOT HAVE BEEN FULLY UTILIZED, SO THAT IT WOULD NOT THEREFORE HAVE BEEN ABLE TO OFFER BEET GROWERS A PRICE ABOVE THE MINIMUM PRICE LAID DOWN BY COMMUNITY RULES .

213 THE CONTESTED DECISION THEREFORE WRONGLY FAILED TO APPLY THE BEFOREMENTIONED PROVISION OF REGULATION NO 26 .

214 THERE IS NO NEED TO CONSIDER WHETHER ONLY THE PAYMENT OF A PRICE ABOVE THE SAID MINIMUM PRICE WAS LIKELY TO 'ENSURE A FAIR STANDARD OF LIVING FOR THE AGRICULTURAL COMMUNITY', REPRESENTED IN THIS CASE BY BEET GROWERS, WHICH IS THE OBJECTIVE REFERRED TO IN ARTICLE 39 ( 1 ) ( B ) OF THE TREATY .

215 IT IS ONLY NECESSARY TO RECORD THAT IN ANY CASE CSM HAS NOT ATTEMPTED TO SHOW WITH ANY DEGREE OF ACCURACY THAT ONLY ITS PURCHASES FROM RT ENABLED IT TO OFFER SUCH A PRICE TO THE SAID PRODUCERS .

216 THIS SUBMISSION MUST THEREFORE BE REJECTED .

217 2 . RT OBJECTS TO THE STATEMENT IN THE CONTESTED DECISION ( P . 43 LT . H . COL .) THAT THE BEFOREMENTIONED EXCEPTION OF REGULATION NO 26 CANNOT BENEFIT THE APPLICANTS BECAUSE 'THE PRACTICES IN QUESTION ARE NOT PART OF THE MEANS PROVIDED TO THIS END BY COMMUNITY RULES' IN ORDER TO GUARANTEE THE EMPLOYMENT AND STANDARDS OF LIVING OF BEET GROWERS .

218 ON THE CONTRARY RT TAKES THE VIEW THAT IT WAS ABSOLUTELY ESSENTIAL TO ADOPT ITS PARTICULAR POLICY IN AN ATTEMPT TO OBTAIN IN THE CASE OF THE SALE OF SUGAR PRODUCED WITHIN THE MAXIMUM QUOTA, RECEIPTS EQUAL TO THE INTERVENTION PRICE 'GUARANTEED TO PRODUCERS' AND TO WHICH THE LATTER WERE ENTITLED IN ORDER TO BE ABLE TO PAY BEET GROWERS THE MINIMUM PRICE FOR SUGAR BEET PRESCRIBED BY COMMUNITY RULES .

219 IN FACT RT WAS UNABLE TO OBTAIN THE INTERVENTION PRICE BY SELLING SUGAR TO THE BELGIAN INTERVENTION AGENCY, AS THE BELGIAN AUTHORITIES INFORMED IT THAT THEY DID NOT WANT SUCH SALES .

220 IN THESE CIRCUMSTANCES THE APPLICANT FOUND THAT IT WAS FORCED, ON THE ONE HAND, TO PREVENT CUSTOMERS, TO WHICH IT HAD SOLD SUGAR FOR DENATURING AND AT A RELATIVELY LOW PRICE, RESELLING IT ON THE MARKET FOR HUMAN CONSUMPTION AT A PRICE LOWER THAN THE INTERVENTION PRICE AND, ON THE OTHER HAND, TO REFUSE TO ACCEPT OFFERS TO PURCHASE AT A PRICE WHICH WAS TOO LOW, WHEN IT COULD OBTAIN A BETTER PRICE BY SELLING DIRECT TO CERTAIN LARGE PURCHASERS .

221 AS PROVIDED FOR IN ARTICLE 9 ( 1 ) OF REGULATION NO 1009/67 THE INTERVENTION AGENCIES 'SHALL BE REQUIRED' TO BUY IN THE SUGAR OFFERED TO THEM AND THE PRODUCER CONCERNED CAN INSIST THAT THIS REQUIREMENT IS OBSERVED .

222 SO FAR AS SUGAR SOLD AT A RELATIVELY LOW PRICE FOR DENATURING IS CONCERNED, A PRODUCER, ACTING INDEPENDENTLY, MAY BE JUSTIFIED IN ENDEAVOURING TO PREVENT THIS SUGAR BEING SOLD AT TOO LOW A PRICE ON THE MARKET FOR HUMAN CONSUMPTION, BUT THE OBJECTIVES OF ARTICLE 39 OF THE TREATY DO NOT HOWEVER IN ANY WAY REQUIRE THA