Judgment of the Court of 29 June 1978. - Benzine en Petroleum Handelsmaatschappij BV and others v Commission of the European Communities. - Oil crisis. - Case 77/77.



European Court reports 1978 Page 01513

Greek special edition Page 00483

Portuguese special edition Page 00525

Spanish special edition Page 00459



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . APPLICATION FOR ANNULMENT - DECISION STATING THAT THERE HAS BEEN A BREACH OF THE RULES ON COMPETITION - PECUNIARY SANCTIONS - ABSENCE - INTEREST IN TAKING PROCEEDINGS

( EEC TREATY , ARTS . 85 AND 86 AND SECOND PARA . OF ART . 173 )

2 . CONJUNCTURAL POLICY - SUPPLY DIFFICULTIES - COMMUNITY MEASURES - ABSENCE - DOMINANT POSITION - ABUSE - PROHIBITION - COMMISSION ' S DUTY TO SUPERVISE

( EEC TREATY , ARTS . 86 AND 103 )

3 . COMPETITION - DOMINANT POSITION - MARKET IN THE PRODUCT IN QUESTION - SUPPLY DIFFICULTIES - REDUCTIONS IN DELIVERIES TO CUSTOMERS - DIFFERENT RATE OF REDUCTION - ABUSE - ABSENCE - APPLICATION OF SIMILAR RATE - DUTY - LEGAL BASIS

( EEC TREATY , ARTS . 86 AND 103 )

Summary

1 . THE ABSENCE OF PECUNIARY SANCTIONS IN A DECISION APPLYING ARTICLES 85 AND 86 OF THE TREATY DOES NOT PRECLUDE THE ADDRESSEE FROM HAVING AN INTEREST IN OBTAINING A REVIEW BY THE COURT OF JUSTICE OF THE LEGALITY OF THAT DECISION AND THUS COMMENCING AN ACTION FOR ANNULMENT UNDER ARTICLE 173 OF THE TREATY .

2 . THE ABSENCE OF RULES BASED ON ARTICLE 103 OF THE TREATY , WHICH WOULD MAKE IT POSSIBLE TO ADOPT SUITABLE CONJUNCTURAL MEASURES , CANNOT RELEASE THE COMMISSION FROM ITS DUTY TO ENSURE IN ALL CIRCUMSTANCES , BOTH IN NORMAL AND SPECIAL MARKET CONDITIONS , WHEN THE COMPETITIVE POSITION OF TRADERS IS PARTICULARLY THREATENED , THAT THE PROHIBITION IN ARTICLE 86 OF THE TREATY IS SCRUPULOUSLY OBSERVED .

3 . THE FACT THAT A SUPPLIER IN A DOMINANT POSITION APPLIES TO DELIVERIES TO ONE OF HIS OCCASIONAL CUSTOMERS IN A PERIOD OF SHORTAGE A RATE OF REDUCTION DIFFERENT FROM THAT WHICH HE APPLIES TO HIS CUSTOMERS WHO HAVE LONG-TERM CONTRACTS WITH HIM CANNOT AMOUNT TO AN ABUSE OF A DOMINANT POSITION .

IN SUCH A CASE A DUTY TO APPLY A SIMILAR RATE OF REDUCTION FOR ALL CUSTOMERS COULD ONLY FLOW FROM MEASURES ADOPTED WITHIN THE FRAMEWORK OF THE TREATY , IN PARTICULAR ARTICLE 103 , OR , IN DEFAULT OF THAT , BY THE NATIONAL AUTHORITIES .

Parties

IN CASE 77/77

1 . BENZINE EN PETROLEUM HANDELSMAATSCHAPPIJ BV , AMSTERDAM ,

2 . BRITISH PETROLEUM RAFFINADERIJ NEDERLAND NV , ROZENBURG ,

3 . BRITISH PETROLEUM MAATSCHAPPIJ NEDERLAND BV , AMSTERDAM ,

REPRESENTED AND ASSISTED BY G . VAN HECKE , ADVOCATE AT THE COUR DE CASSATION , BRUSSELS , L . P . VAN DEN BLINK , ADVOCATE , AMSTERDAM , I . VAN BAEL , ADVOCATE , BRUSSELS , AND D . J . GIJLSTRA , ADVOCATE , AMSTERDAM , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . C . WOLTER , 2 RUE GOETHE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , B . VAN DER ESCH , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , M . CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 19 APRIL 1977 RELATING TO A PROCEEDING UNDER ARTICLE 86 OF THE EEC TREATY ( IV/28.841 - ABG OIL COMPANIES OPERATING IN THE NETHERLANDS ; OFFICIAL JOURNAL 1977 L 1/17 ),

Grounds

1BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 1 JULY 1977 , THE NETHERLANDS COMPANIES BENZINE EN PETROLEUM HANDELSMAATSCHAPPIJ BV , BRITISH PETROLEUM RAFFINADERIJ NEDERLAND NV AND BRITISH PETROLEUM MAATSCHAPPIJ NEDERLAND BV ( HEREINAFTER REFERRED TO AS ' ' BP ' ' ) APPLIED FOR THE ANNULMENT OF DECISION NO 77/327/EEC , ADOPTED BY THE COMMISSION ON 19 APRIL 1977 AFTER RECEIVING THE OPINION OF THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND DOMINANT POSITIONS RELATING TO A PROCEEDING UNDER ARTICLE 86 OF THE EEC TREATY UNDERTAKEN ON AN APPLICATION MADE TO THE COMMISSION ON 4 JANUARY 1974 BY THE NETHERLANDS COMPANIES AARDOLIE BELANGEN GEMEENSCHAP BV ( ABG ) AND AVIA NEDERLAND CV ( AVIA ).

2THAT DECISION WAS NOTIFIED TO THE ADDRESSEES , WHO CARRY ON PRODUCTION AND MARKETING OF PETROLEUM PRODUCTS IN THE NETHERLANDS , ON 25 APRIL 1977 AND WAS PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES L 117 OF 9 MAY 1977 , P . 1 .

3IN THE CONTESTED DECISION THE COMMISSION ACCUSES THOSE COMPANIES OF HAVING , DURING THE CRISIS FROM NOVEMBER 1973 TO MARCH 1974 , ABUSED A DOMINANT POSITION WITH REGARD TO ABG WHICH ACTS AS A PURCHASING CO- OPERATIVE ON BEHALF OF THE 19 MEMBERS OF THE AVIA GROUP .

4THE PERIOD REFERRED TO IN THE CONTESTED DECISION IS THAT OF THE CRISIS IN THE SUPPLY OF PETROLEUM PRODUCTS WHICH , ORIGINATING IN THE LIMITATION OF PRODUCTION WHICH TOOK PLACE IN NOVEMBER 1973 IN A LARGE NUMBER OF PRODUCING COUNTRIES , WAS PARTICULARLY FELT IN THE NETHERLANDS BECAUSE OF THE EMBARGO APPLIED TO THAT STATE FROM DECEMBER 1973 , WHICH RESULTED IN A CONSIDERABLE DIMINUTION OF IMPORTS OF CRUDE OIL .

5WHILST ACCUSING BP OF INFRINGING THE PROVISIONS OF ARTICLE 86 OF THE TREATY , THE COMMISSION NEVERTHELESS TOOK THE VIEW THAT THE INTERVENTION OF THE RIJKSBUREAU VOOR AARDOLIE PRODUKTEN ( NATIONAL OFFICE FOR PETROLEUM PRODUCTS ) SET UP BY MINISTERIAL DECISION NO 573/814 OF 13 NOVEMBER 1973 MIGHT HAVE CREATED DOUBTS IN THE MINDS OF THE OIL COMPANIES WITH REGARD TO THEIR OBLIGATIONS TO THEIR CUSTOMERS AND THAT BP MIGHT HAVE THOUGHT THAT THE ADVANCES OF PETROL AGAINST CRUDE OIL MIGHT HAVE FREED IT IN PART FROM ITS DUTY TO MAKE DELIVERIES TO ABG DURING THE CRISIS .

6MORE GENERALLY , THE COMMISSION TOOK THE VIEW THAT THE CONFUSION WHICH PREVAILED ON THE NETHERLANDS MARKET IN PETROLEUM PRODUCTS BECAUSE OF UNCERTAINTY AS TO HOW THE CRISIS MIGHT DEVELOP MADE IT DIFFICULT TO ASSESS THE REDUCTIONS IN DELIVERIES WHICH WERE NEEDED .

7IN VIEW OF THESE FACTORS THE CONTESTED DECISION CONCLUDED THAT IT WOULD NOT BE APPROPRIATE IN THIS CASE TO IMPOSE A FINE ON BP UNDER ARTICLE 15 ( 2 ) OF REGULATION NO 17 .

8THE APPLICANTS ON THE OTHER HAND MAINTAIN THAT IN THIS CASE THE COMMISSION BASED ITS VIEWS ON A CONCEPT OF A DOMINANT POSITION WHICH PROCEEDS FROM AN INCORRECT ANALYSIS OF ARTICLE 86 OF THE TREATY AND ACCUSED BP OF HAVING ABUSED THAT POSITION ON THE BASIS OF AN INADEQUATE APPRECIATION OF THE FACTS AND LAW AFFECTING THE MARKET .

9THEY POINT OUT FURTHER THAT ACTION BY THE COMMISSION UNDER ARTICLE 86 OF THE TREATY IS ALL THE MORE INAPPROPRIATE IN THIS CASE ' ' WHEN REFERENCE IS MADE TO COUNCIL DIRECTIVE NO 73/238/EEC OF 24 JULY 1973 ON MEASURES TO MITIGATE THE EFFECTS OF DIFFICULTIES IN THE SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS ' ' ( OFFICIAL JOURNAL 1973 L 228 , P . 1 ), WHICH MADE GOVERNMENTS AND NOT THE OIL COMPANIES RESPONSIBLE FOR SHARING THE AVAILABLE QUANTITIES OF CRUDE OIL AND PETROLEUM PRODUCTS .

10THEY CLAIM THAT THE PERIOD OF SCARCITY IN 1973 AND 1974 DID IN FACT HIGHLIGHT THE NECESSITY FOR A CLEARER DEFINITION OF THE RESPONSIBILITIES AND OF THE DIRECTIVES TO BE ISSUED UNDER ARTICLE 103 OF THE TREATY AND TO BE ADDRESSED AT ONE AND THE SAME TIME TO THE LARGE OIL COMPANIES DEALING WITH SUPPLIES AND TO GOVERNMENTS .

11FINALLY , THE APPLICANTS STATE THAT THE FACT THAT NO FINE WAS IMPOSED BY THE CONTESTED DECISION DOES NOT NEGATE THE EXISTENCE OF THEIR INTEREST IN OBTAINING AN ACKNOWLEDGEMENT FROM THE COURT OF THE UNFOUNDED NATURE OF THE CRITICISM MADE OF THEM BY THAT DECISION WHICH , IF IT WERE MAINTAINED , MIGHT IN ADDITION BE A BASIS FOR THE COMMENCEMENT OF AN ACTION FOR DAMAGES AGAINST BP BEFORE THE NATIONAL COURTS .

12ARTICLES 15 ( 1 ) AND 16 ( 1 ) OF REGULATION NO 17 PROVIDE THAT THE COMMISSION ' ' MAY ' ' , BY DECISION , IMPOSE ON UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS FINES OR PERIODIC PENALTY PAYMENTS .

13THE ABSENCE OF PECUNIARY SANCTIONS IN A DECISION APPLYING ARTICLES 85 UND 86 OF THE TREATY DOES NOT PRECLUDE THE ADDRESSEE FROM HAVING AN INTEREST IN OBTAINING A REVIEW BY THE COURT OF JUSTICE OF THE LEGALITY OF THAT DECISION AND THUS COMMENCING AN ACTION FOR ANNULMENT UNDER ARTICLE 173 OF THE TREATY .

14FURTHERMORE , ARTICLE 103 OF THE TREATY , WHICH LAYS DOWN THAT ' ' MEMBER STATES SHALL REGARD THEIR CONJUNCTURAL POLICIES AS A MATTER OF COMMON CONCERN ' ' , WHILST PROVIDING THE COMMUNITY WITH THE OPPORTUNITY TO MEET CONJUNCTURAL DIFFICULTIES BY APPROPRIATE MEASURES SUBJECT TO THE OBSERVANCE OF COMMUNITY OBJECTIVES , IS TO BE FOUND AMONGST THE PROVISIONS RELATING TO THE COMMON ECONOMIC POLICY AND THIS IN A FIELD OTHER THAN THAT OF THE PROVISIONS OF THE TREATY RELATING TO THE COMPETITION RULES , SUCH AS ARTICLES 85 AND 86 .

15HENCE , THE ABSENCE OF APPROPRIATE RULES , BASED IN PARTICULAR ON ARTICLE 103 OF THE TREATY , WHICH WOULD MAKE IT POSSIBLE TO ADOPT SUITABLE CONJUNCTURAL MEASURES , WHILST REVEALING A NEGLECT OF THE PRINCIPLE OF COMMUNITY SOLIDARITY WHICH IS ONE OF THE FOUNDATIONS OF THE COMMUNITY , AND A FAILURE TO ACT WHICH IS ALL THE MORE SERIOUS SINCE ARTICLE 103 ( 4 ) PROVIDES IN TERMS THAT ' ' THE PROCEDURES PROVIDED FOR IN THIS ARTICLE SHALL ALSO APPLY IF ANY DIFFICULTY SHOULD ARISE IN THE SUPPLY OF CERTAIN PRODUCTS ' ' , STILL CANNOT RELEASE THE COMMISSION FROM ITS DUTY TO ENSURE IN ALL CIRCUMSTANCES , BOTH IN NORMAL AND SPECIAL MARKET CONDITIONS , WHEN THE COMPETITIVE POSITION OF TRADERS IS PARTICULARLY THREATENED , THAT THE PROHIBITION IN ARTICLE 86 OF THE TREATY IS SCRUPULOUSLY OBSERVED .

16THE CONTESTED DECISION STATES THAT IN THIS MATTER THERE EXISTED A DOMINANT POSITION NOT ONLY ON THE PART OF BP RELATIVE TO ITS CUSTOMERS BUT ALSO ON THAT OF EACH OF THE LARGE INTERNATIONAL OIL COMPANIES REFINING OR HAVING REFINING DONE FOR THEM IN THE NETHERLANDS RELATIVE EACH TO ITS OWN CUSTOMERS .

17THE REASONS GIVEN FOR THIS CONCLUSION ARE BASED ESSENTIALLY ON CONSIDERATIONS OF A GENERAL NATURE RELATING TO THE CONDITIONS OF THE WHOLE OF THE NETHERLANDS MARKET DURING THE CRISIS AS REGARDS THE SUPPLY OF PETROLEUM PRODUCTS AND THE STATE OF COMMERCIAL RELATIONS , WHICH , IN A MARKET SUCH AS THIS ONE , INEVITABLY ARISE BETWEEN ' ' SUPPLIERS WHO HAVE A SUBSTANTIAL SHARE OF THE MARKET AND QUANTITIES AVAILABLE AND THEIR CUSTOMERS ' ' .

18THE FIRST QUESTION TO BE EXAMINED IS WHETHER , ON THE SUPPOSITION THAT SPECIAL MARKET CONDITIONS SUCH AS THOSE IN THIS CASE DID IN FACT ENSURE A DOMINANT POSITION IN THE NETHERLANDS FOR THE LARGE OIL COMPANIES ESTABLISHED THERE AS AGAINST THEIR RESPECTIVE CUSTOMERS , THE FACTUAL AND LEGAL CIRCUMSTANCES ON WHICH THE COMMISSION RELIES TO CHARACTERIZE IN PARTICULAR THE INDIVIDUAL CONDUCT OF BP DURING THE CRISIS MAKE IT POSSIBLE TO CONSIDER THAT CONDUCT AS AN ABUSE WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY .

19THE CONTESTED DECISION ACCUSES BP OF HAVING ABUSED ITS DOMINANT POSITION ON THE MARKET IN QUESTION BY REDUCING ITS SUPPLIES TO ABG SUBSTANTIALLY AND PROPORTIONATELY TO A MUCH GREATER EXTENT THAN IN RELATION TO ALL ITS OTHER CUSTOMERS AND OF HAVING BEEN UNABLE TO PROVIDE ANY OBJECTIVE REASONS FOR ITS BEHAVIOUR .

20IT THUS ACCUSES THE COMPANY OF HAVING IMPOSED ON ABG AN OBVIOUS , IMMEDIATE AND SUBSTANTIAL COMPETITIVE DISADVANTAGE AND STATES THAT THIS BEHAVIOUR MIGHT HAVE JEOPARDIZED ABG ' S CONTINUED EXISTENCE .

21WHILST ADMITTING THAT UNDERTAKINGS HOLDING A DOMINANT POSITION MAY TAKE INTO CONSIDERATION CERTAIN PECULIARITIES AND DIFFERENCES IN THE SITUATION OF THEIR CUSTOMERS THE DECISION STATES THAT , TO AVOID ABUSING A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY AN UNDERTAKING IN SUCH A POSITION MUST DISTRIBUTE ' ' FAIRLY ' ' THE QUANTITIES AVAILABLE AMONGST ALL ITS CUSTOMERS .

22FOR THE PURPOSES OF THIS DISTRIBUTION IT IS STATED THAT IN THE EVENT OF A GENERALIZED SUPPLY CRISIS ALL THE INDEPENDENT COMPANIES ARE BOUND TO DEAL IN THE FIRST PLACE WITH THEIR HABITUAL SUPPLIERS AND THAT REDUCTIONS IN THE SUPPLIES TO PURCHASERS IN A PERIOD OF SHORTAGE MUST BE CARRIED OUT ON THE BASIS OF A REFERENCE PERIOD FIXED IN THE YEAR BEFORE THE CRISIS .

23THE DECISION CONCLUDES THAT HAVING REGARD TO ALL THESE FACTORS BP DISCRIMINATED AGAINST ABG , AND THE ADVANCES ON CRUDE OIL MADE WITH MOTOR SPIRIT AGREED BY BP WITH ABG DID NOT JUSTIFY IN THIS CASE A ' ' DIFFERENT ' ' TREATMENT OF ABG IN COMPARISON WITH OTHER CUSTOMERS .

24IT IS COMMON GROUND THAT ON 21 NOVEMBER 1972 BP TERMINATED THE AGREEMENT WHICH HAD BEEN IN EXISTENCE SINCE 1968 WITH ABG AND THUS PUT AN END TO ITS COMMERCIAL RELATIONSHIP WITH THAT COMPANY AS REGARDS ITS SUPPLY OF MOTOR SPIRIT .

25FOLLOWING THE TERMINATION OF THAT AGREEMENT WHICH WAS CONFIRMED BY AN EXCHANGE OF LETTERS BETWEEN BP AND ABG ON 17 JANUARY 1973 , THE LATTER COMPANY SOUGHT , ON THE ADVICE IN PARTICULAR OF THE NETHERLANDS GOVERNMENT , TO BUY CRUDE OIL ON THE INTERNATIONAL MARKET AND HAVE IT REFINED .

26IT WAS FURTHERMORE AGREED BETWEEN BP AND ABG THAT THE LATTER MIGHT USE THE REFINING CAPACITIES OF BP TO OBTAIN MOTOR SPIRIT FROM ITS OWN CRUDE OIL .

27HAVING REGARD TO THAT AGREEMENT AND SINCE ABG HAD BEEN EXPERIENCING , EVEN BEFORE THE CRISIS , DIFFICULTIES IN SUPPLYING ITSELF WITH CRUDE OIL , BP AGREED TO MAKE IT ADVANCES OF PETROL UP TO A LEVEL OF 250 000 CUBIC METRES OF CRUDE OIL BELONGING TO IT , WHICH ABG WAS TO RETURN BEFORE 1 JANUARY 1974 .

28IT EMERGES FROM THE CONTESTED DECISION THAT THE FACT THAT BP IN NOVEMBER 1972 TERMINATED ITS COMMERCIAL RELATIONS WITH ABG WAS CONNECTED WITH THE REGROUPING OF BP ' S OPERATIONAL ACTIVITIES WHICH WAS MADE NECESSARY BY THE NATIONALIZATION OF A LARGE PART OF THAT COMPANY ' S INTERESTS IN THE PRODUCTION SECTOR AND BY THE PARTICIPATION OF THE PRODUCER COUNTRIES IN ITS EXTRACTING ACTIVITIES AND IS THUS EXPLAINED BY CONSIDERATIONS WHICH HAVE NOTHING TO DO WITH ITS RELATIONS WITH ABG .

29IT THEREFORE FOLLOWS THAT AT THE TIME OF THE CRISIS AND EVEN FROM NOVEMBER 1972 , ABG ' S POSITION IN RELATION TO BP WAS NO LONGER , AS REGARDS THE SUPPLY OF MOTOR SPIRIT , THAT OF A CONTRACTUAL CUSTOMER BUT THAT OF AN OCCASIONAL CUSTOMER .

30THE PRINCIPLE LAID DOWN BY THE CONTESTED DECISION THAT REDUCTIONS IN SUPPLIES OUGHT TO HAVE BEEN CARRIED OUT ON THE BASIS OF A REFERENCE PERIOD FIXED IN THE YEAR BEFORE THE CRISIS , ALTHOUGH IT MAY BE EXPLICABLE IN CASES IN WHICH A CONTINUED SUPPLY RELATIONSHIP HAS BEEN MAINTAINED , DURING THAT PERIOD , BETWEEN SELLER AND PURCHASER , CANNOT BE APPLIED WHEN THE SUPPLIER CEASED DURING THE COURSE OF THAT SAME PERIOD TO CARRY ON SUCH RELATIONS WITH ITS CUSTOMER , REGARD BEING HAD IN PARTICULAR TO THE FACT THAT THE PLANS OF ANY UNDERTAKING ARE NORMALLY BASED ON REASONABLE FORECASTS .

31MOREOVER , THE ADVANCES IN PETROL AGAINST CRUDE OIL AGREED TO BY BP IN PURSUANCE OF THE PROCESSING AGREEMENT , AS THEY OCCUR WITHIN THE CONTEXT OF AN AGREEMENT WHOSE PURPOSE WAS SOLELY THE REFINING OF CRUDE OIL SUPPLIED BY ABG AND NOT THE SUPPLYING OF ABG WITH MOTOR SPIRIT , CANNOT SERVE AS A VALID ARGUMENT TO COMPARE ABG ' S POSITION IN THIS CASE IN RELATION TO BP WITH THAT OF A TRADITIONAL CUSTOMER OF BP DURING THE ABOVE-MENTIONED REFERENCE PERIOD .

32FOR ALL THESE REASONS , SINCE ABG ' S POSITION IN RELATION TO BP HAD BEEN , FOR SEVERAL MONTHS BEFORE THE CRISIS OCCURRED , THAT OF AN OCCASIONAL CUSTOMER , BP CANNOT BE ACCUSED OF HAVING APPLIED TO IT DURING THE CRISIS LESS FAVOURABLE TREATMENT THAN THAT WHICH IT RESERVED FOR ITS TRADITIONAL CUSTOMERS .

33HAVING REGARD TO THE GENERAL SHORTAGE OF PETROLEUM PRODUCTS DURING THE PERIOD UNDER REVIEW AND THE DIFFICULT POSITION IN WHICH THE WHOLE OF THE NETHERLANDS MARKET WAS PLACED , THE APPLICATION TO ABG BY BP OF A RATE OF REDUCTION IDENTICAL OR VERY CLOSE TO THAT APPLIED TO ITS TRADITIONAL CUSTOMERS WOULD HAVE RESULTED IN A CONSIDERABLE DIMINUTION OF THE DELIVERIES WHICH THOSE CUSTOMERS EXPECTED .

34A DUTY ON THE PART OF THE SUPPLIER TO APPLY A SIMILAR RATE OF REDUCTION IN DELIVERIES TO ALL ITS CUSTOMERS IN A PERIOD OF SHORTAGE WITHOUT HAVING REGARD TO OBLIGATIONS CONTRACTED TOWARDS ITS TRADITIONAL CUSTOMERS COULD ONLY FLOW FROM MEASURES ADOPTED WITHIN THE FRAMEWORK OF THE TREATY , IN PARTICULAR ARTICLE 103 , OR , IN DEFAULT OF THAT , BY THE NATIONAL AUTHORITIES .

35IN THE ABSENCE OF SUCH COMMUNITY MEASURES THE NETHERLANDS NATIONAL AUTHORITIES , WITHIN THE FRAMEWORK OF THE DISTRIBUTIEWET ( LAW ON DISTRIBUTION ), 1939 , ON 13 NOVEMBER 1973 SET UP THE NATIONAL OFFICE FOR PETROLEUM PRODUCTS MENTIONED ABOVE IN ORDER TO FACE THE DIFFICULTIES MET WITH BY PURCHASERS OF PETROLEUM PRODUCTS DURING THE CRISIS .

36ACCORDING TO AN OFFICIAL COMMUNICATION PUBLISHED IN THE NETHERLANDS STAATSCOURANT OF 14 NOVEMBER 1973 , THE TASK OF THE NATIONAL OFFICE WAS TO CONTROL THE SUPPLY OF PETROLEUM PRODUCTS AND , IF THE DEVELOPMENT OF THE SITUATION SO REQUIRED , TO PREPARE FOR POSSIBLE DISTRIBUTION OF THOSE PRODUCTS AND TO CARRY IT OUT AT THE APPROPRIATE TIME .

37IT APPEARS FROM THE DESCRIPTION FURNISHED BY THE NETHERLANDS AUTHORITIES AND REPRODUCED IN THE CONTESTED DECISION THAT , BOTH DURING THE PERIOD FROM 12 JANUARY TO 4 FEBRUARY 1974 AND OUTSIDE THAT PERIOD , THE NATIONAL OFFICE SUPPORTED CONSUMERS OR TRADERS WHO WERE IN DIFFICULTY .

38FOR THIS PURPOSE THE NATIONAL OFFICE BROUGHT INTO FORCE FROM THE BEGINNING A SPECIAL DISTRIBUTION PROGRAMME FOR SUPPLYING THE NEEDS OF ABG WITHOUT HOWEVER COMPELLING THE LARGE OIL COMPANIES , INCLUDING BP , TO APPLY A SIMILAR RATE OF REDUCTION IN DELIVERIES TO ALL CUSTOMERS .

39THROUGH THE INTERMEDIARY OF THE NATIONAL OFFICE ABG WAS ABLE , DURING THE PERIOD OF SHORTAGE , TO HAVE ACCESS FOR ITS MOTOR SPIRIT SUPPLIES , TO OTHER LARGE OIL COMPANIES GROUPED TOGETHER IN THE OLIE CONTACT COMMISSIE ( LIAISON COMMITTEE FOR THE OIL INDUSTRY ).

40MOREOVER ALTHOUGH THE INTERVENTION OF THE NATIONAL OFFICE WAS NOT OF A MANDATORY NATURE BUT WAS RATHER LIMITED TO AN APPEAL FOR VOLUNTARY CONTRIBUTIONS FROM THE OIL COMPANIES , THE POSITION NEVERTHELESS REMAINS THAT ABG FOUND WITH THE NATIONAL AUTHORITIES , ACTING FIRST THROUGH THE NATIONAL OFFICE AND LATER DIRECTLY THROUGH THE MINISTER FOR ECONOMIC AFFAIRS , A CONSTANT SUPPORT WHICH , AS ITS DIFFICULTIES GREW , WAS TRANSFORMED INTO A MORE AND MORE MARKED INTERVENTION , INVOLVING THE TAKING OF RESPONSIBILITY BY THE NATIONAL OFFICE FOR THE NEEDS OF ABG ' S NON-CONTRACTUAL CUSTOMERS IN MOTOR SPIRIT , THE SETTING UP OF A POOL INTENDED FOR THE EXCLUSIVE SUPPLY OF ABG AND , WHEN ABG ' S POSITION BECAME CRITICAL , MANDATORY SUPPLY DECISIONS ADDRESSED TO THE LARGE OIL COMPANIES .

41ANNEX I TO THE DECISION MOREOVER SHOWS THAT DURING THE PERIOD OF SHORTAGE , EXCEPT FOR THE MONTH OF FEBRUARY 1974 , ABG WAS ABLE TO RECEIVE MOTOR SPIRIT NOT ONLY FROM THE OIL COMPANIES GROUPED TOGETHER IN THE LIAISON COMMITTEE BUT ALSO FROM THE 13 OTHER COMPANIES IN QUANTITIES WHICH REPRESENTED DURING THE FIRST THREE MONTHS OF THE CRISIS 32.5 TO 37% OF ITS NORMAL SUPPLIES .

42FINALLY IT IS CLEAR THAT , THANKS TO THAT SUPPORT AND TO THE SUPPLY OPPORTUNITIES OFFERED BY THE MARKET APART FROM SUPPLIES COMING FROM BP , ABG WAS ABLE DURING THE CRISIS TO FIND SUPPLIES WHICH , ALTHOUGH LIMITED BY REASON IN PARTICULAR OF THE GENERAL SCARCITY OF PRODUCTS , NEVERTHELESS DID PUT IT IN A POSITION TO OVERCOME THE DIFFICULTIES ENGENDERED BY THE CRISIS .

43HENCE , IN VIEW OF THESE CIRCUMSTANCES , IT DOES NOT APPEAR THAT BP IN THIS CASE ABUSED A DOMINANT POSITION IN RELATION TO ABG WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY .

44IN THESE CIRCUMSTANCES THE CONTESTED DECISION MUST BE ANNULLED .

Decision on costs

COSTS

45UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

46THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS AND MUST THEREFORE BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY

1 . ANNULS COMMISSION DECISION NO 77/327/EEC OF 19 APRIL 1977 , PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES L 117 OF 9 MAY 1977 , P . 1 ;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .