1.

In answer to that allegation the applicants claim, first, that the policy pursued by them which was criticized by the Commission does not lead to any substantial restriction of competition as the market for spare parts and servicing of cash registers, in which hardly any independent undertakings are active, is not an important market. In so far as a restriction of competition does exist the fact must be borne in mind that it has the effect of intensifying competition on the cash register market, which is already fierce. With regard to Liptons in particular, in September 1972 Hugin was prepared to supply certain spare parts for cash registers which were to be refurbished but Liptons did not take up that offer. In addition, Liptons is only an insignificant customer and in fact, because it serves a different circle of customers, it does not compete with Hugin. Finally, Liptons has moreover not disappeared from the market nor has it suffered detrimental effects to its business activities. Liptons was in fan able to obtain spare parts from used cash registers and, as its turnover figures show, to continue its business of renting out Hugin cash registers. In so far as a slight falling-off in its business is visible it is merely within the limits of what was normal following the tailing-off of the boom of 1971 and 1972. (a) It should first be said with regard to this dispute that reference to Article 86 is in principle justified when an undertaking in a dominant position makes use of that dominant position in order to eliminate what is in practice the only important competitor on a secondary market and thus to monopolize the secondary market which is related to the market in which a dominant position is held. That constitutes a forbidden alteration of the competitive structure by the strengthening of a dominant position; it is also appropriate to think of the prohibition on the imposition of additional services based on Article 86 (b) and Article 85 (1) (e) because cash register customers interested in spare parts are obliged to allow Hugin to provide maintenance as well. In this respect the Commission was able to refer to the practice in such matters at national level of, for example, the British Monopolies Commission and the American anti-trust authorities with regard to the exclusion of independent film-developing companies or that of the Bundesgerichtshof with regard to the above-mentioned refusal to supply spare pans to an undertaking engaged in servicing cash registers. In this respect the well-known Sugar Case (Judgment of 16 December 1975 in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie and Others v Commission [1975] 2 ECR 1663), in which the application of Article 86 (b) to the limitation of the sales outlets of competitors was approved, is also relevant. Reference may also be made to the judgment of 16 March 1974 in Cases 6 and 7/73 (Istituto Chemioterapico Italiano v Commission [1974] 1 ECR 223) and to the Bananas Case (judgment of 14 February 1978 in Case 27/76 United Brands v Commission [1978] 1 ECR 207). In the first-mentioned decision, as the Court will recall, the refusal to supply raw materials by an undertaking occupying a dominant position on the market in raw materials was classified as an abuse as it had the effect of restricting competition on the market on which the products derived from the raw materials were sold. In the second case, the termination of supplies by United Brands to a Danish purchaser who was a long-standing customer, who abided by normal commercial practice and whose orders were in no way out of the ordinary was classified as an abuse on the ground that the refusal to supply limited sales outlets and pursued the unlawful objective of strengthening the supplier's dominant position. (b) As regards the applicant's claim in the present case, in contrast thereto, that the refusal of supplies of spare parts does not basically affect competition as there are virtually no independent maintenance undertakings, I would refer to the fact that other producers are quite prepared to supply spare parts to independent maintenance undertakings. That fact alone shows that in fact there is competition in after-sales service for cash registers. In addition, in the course of the proceedings mention was made not only of Liptons but of arount 40 other similar undertakings in the United Kingdom. In this respect it is here irrelevant whether those other undertakings in fact only deal in used cash registers for which spare parts can be obtained from cash registers which have become valueless or whether, as the applicants allege elsewhere, they are merely not in a position to offer a first-class maintenance service. In any event, the applicants could not deny that Liptons at least has obtained spare parts from Hugin for many years and was engaged in providing servicing for Hugin cash registers, as in fact Lipton's mechanics were even directly trained by Hugin for that purpose. (c) I further agree with the Commission that an undertaking which refuses to supply brand-new original spare parts which cannot be obtained elsewhere to independent undertakings and which thus seeks to monopolize the market in after-sales servicing in so far as it is dependent on new spare parts, can in principle not rely on the objection that the market is of merely minor importance and that there are therefore no significant detrimental effects on competition. In my opinion in the Hoffmann-La Roche case I have already pointed out that the theory of the ‘perceptibility’ of detrimental effects on competition has been extended to Article 85 of the EEC Treaty, that is to a field in which normal and effective competition is restricted only by agreements. In that connexion that theory is quite logical, but it is not so logical on a market on which competition is in any event limited because an undertaking occupies a dominant position. Otherwise it would be possible — and it is to my mind unacceptable — for an undertaking with a dominant position on the market without difficulty to exclude small undertakings from business in reliance on their small share of competition. In addition, the present case concerns not only certain orders of magnitude which may be neglected without more ado. The applicants in fact make the mistake of having regard only to existing competitors and their turnover. If, however, regard is had to the extent of the relevant market, as I think is correct, that is Hugin's turnover in spare parts and after-sales service, whether in the whole of the common market or only in the United Kingdom — the figures are set out in the contested decision — it can certainly not be said that the exclusion of independent servicing undertakings from this field of activity — in any event in the course of time they might obtain a larger share — is irrelevant for the purposes of competition law in view of their size. (d) Nor is it possible — and in this respect also I am in agreement with the Commission — to justify the attempt to monopolize after-sales service by the argument that concentration of after-sales service in the hands of Hugin permits increased competition on the cash-register market which benefits consumers. In my opinion there are fundamental objections to such a ‘balancing out’ of factual situations which involve the complete elimination of independent maintenance undertakings and thus a fundamental alteration of the structure of competition. No support for the applicant's view is to be found in the previous case-law. This is true on the one hand of the above-mentioned Sugar Case to which the applicants referred in this connexion. Although in that case prohibitions on competition in trade representation contracts were declared to be unobjectionable that was only because such a prohibition corresponds to the essence and logic of such a relationship, since trade representatives as a rule are to be regarded as subsidiary bodies which form an economic unit with the undertaking they represent. In addition, the fact should not be forgotten that that judgment also ruled that the conclusion of such a contract may constitute an abuse by an undertaking holding a dominant position on the market if thereafter foreign competitors find that there are no independent operators who can market the product in question. The same applies to the judgment in the Metro Case (Case 26/76) to which reference was also made. In that case in fact certain restrictions on competition were held to be permissible having regard to the strengthening of competition in other areas, but solely in the context of the application of Article 85 (3), that is in the context of a discretionary decision of the Commission, and an important factor was that competition at one economic level was not eliminated but that rather the selective distribution system which was under examination in that case left sufficient scope for workable inter-brand competition from the authorized dealers. If considerations of the kind put forward by the applicants in the context of Article 86 are held to be reasonable the fact is not insignificant that in the course of the proceedings the applicants have not argued that their commercial policy has such an effect — that is, the strengthening of competition between cash register producers — and that it is linked to beneficial effects for consumers, particularly in the field of after-sales service and supplies of spare parts. (e) It is not possible to argue that Hugin has not abused its market position in relation to Liptons in particular by stating that as Liptons has a different circle of customers from Hugin it cannot be regarded as a competitor of Hugin. As the Court is aware, the applicants rely on that argument on the ground that Liptons does not provide customer after-sales service for new cash registers but is primarily engaged in the refurbishing of simple machines which are disposed of to small undertakings and with renting out cash registers, whilst Hugin itself in preference supplies large commercial chains — and only with new cash registers — and rents out cash registers only in exceptional circumstances. It is apparent from the agreement with Hugin GB that in the years 1969 to 1971 Liptons was indeed to a certain extent also engaged in providing after-sales service and was not only concerned in the conversion of cash registers to the decimal system. In any event, proof of the applicants' contrary view cannot be derived from a letter of Liptons of November 1972 in which cash register customers are referred to Hugin for servicing or from three repair bills from Hugin to Liptons dating from July to October 1972, as those may equally well be explained by the fact that at that time Hugin was not making sufficient quantities of spare parts available to Liptons. On the other hand, it must be assumed that Liptons is competing with Hugin even if Liptons cannot be shown to provide proper after-sales service for new cash registers, at least in so far as Liptons markets refurbished cash registers and rents out Hugin cash registers and every diminution of its business caused by the refusal to supply spare parts in this field benefits Hugin as a supplier of new cash registers. Similarly, in the light of everything that has been stated above, the argument that in view of the size of Liptons' business Liptons is not an important competitor for Hugin is no justification. For that reason the question whether the figures for Liptons' turnover in 1974 submitted by the applicants reflect the normal trend of business following the end of the cash register boom of 1971/1972 or whether, at least in part, they were caused by Hugin's commercial policy, can be left open. To my mind it is only important that for many years Liptons was the only serious competitor in the United Kingdom for the servicing of Hugin cash registers. That assessment is not affected by reference to the fact that in September 1972 Hugin was prepared to supply certain spare parts to Liptons but that Liptons did not take up that offer. In that respect it is irrelevant whether, as Liptons argues, it was an isolated offer or whether Hugin was seeking a longer-term solution. The decisive factor is rather that it related only to Liptons' activities in the field of refurbishing used cash registers, in other words that Hugin was not prepared to supply spare parts for other important fields of business, that is, general servicing and renting. Finally, it is not possible to say that there has been no abuse against Liptons on the ground that that undertaking has not disappeared from the commercial world and that a certain falling-off of its business is the result of the general economic trend rather than Hugin's commercial policy, particularly as Hugin was always prepared to provide after-sales service for the cash registers rented out and refurbished by Liptons. In this respect it should be remarked, on the one hand, that it is not only when a competitor is, as it were, given the death blow that an abuse within the meaning of Article 86 is constituted. That is shown by the United Brands Case in which Article 86 was applied although with other brands of bananas. On the other hand, it may certainly be assumed that Hugin's commercial policy detrimentally affected Liptons' commercial activities. In any event, at least the servicing of Hugin cash registers with original spare parts, which earlier had in fact been delivered in certain quantities, was rendered impossible. In addition, it must be assumed that even if Hugin is prepared to provide after-sales service the refusal of supplies had an effect on the business in refurbished and rented cash registers, as without such a formal undertaking from Hugin naturally not all of Liptons' customers would be prepared to rely on prompt Hugin after-sales service or to accept the inconvenience of dealing with two undertakings. The exact extent of losses is not of importance here. It is sufficient to refer to the change in Liptons' revenue from the servicing and renting of Hugin cash registers from 1970 to 1975, which clearly shows in absolute figures — in which inflation also has to be taken into account — and in percentages that its business diminished.