TO SAY THAT THE PRICE MEASURES LAPSED IN AUGUST 1974 AND THOSE RELATING TO THE BAN ON RESALE WERE NOT FOLLOWED UP AND IN ANY EVENT TERMINATED ON 1 JULY 1973 .
( II ) THE FEDETAB RECOMMENDATION OF 1 DECEMBER 1975
102 THE RECOMMENDATION WHICH REPLACED THE PREVIOUS MEASURES AND OF WHICH NOTICE WAS GIVEN BY FEDETAB TO THE COMMISSION ON 1 DECEMBER 1975 CONCERNS ONLY THE CIGARETTE SUB-SECTOR . IT IS COMMON GROUND THAT THE OTHER APPLICANTS INFORMED THE COMMISSION THAT THEY INTENDED TO COMPLY WITH THE RECOMMENDATION AND WISHED TO BE PARTY TO THE NOTIFICATION . ACCORDING TO THE REASONS STATED IN THE COMMISSION DECISION THE FIRMS IN FEDETAB HAD A GREAT INFLUENCE ON OTHER MANUFACTURERS AND IMPORTERS AND ON WHOLESALERS AND RETAILERS . THE RECOMMENDATION THEREFORE OPERATES AS A GENUINE MANDATORY RULE OF CONDUCT FOR ALL FIRMS IN THE INDUSTRY . IT CONSTITUTES A DECISION OF AN ASSOCIATION OF UNDERTAKINGS AND AN AGREEMENT BETWEEN THEM THE OBJECT AND EFFECT OF WHICH ARE APPRECIABLY TO RESTRICT COMPETITION BETWEEN MANUFACTURERS AND ALTERNATIVELY BETWEEN WHOLESALERS WITHIN THE COMMON MARKET . FURTHER , IT DOES NOT SATISFY THE CONDITIONS OF ARTICLE 85 ( 3 ) OF THE TREATY INASMUCH AS IT DOES NOT CONTRIBUTE TO IMPROVING DISTRIBUTION SUFFICIENTLY TO COUNTER-BALANCE THE RESTRICTIVE EFFECTS UPON COMPETITION WHICH IT CAUSES AND DOES NOT ALLOW CONSUMERS A FAIR SHARE OF THE RESULTING BENEFIT .
103 UNDER THE RECOMMENDATION THE ORGANIZATION OF CIGARETTE DISTRIBUTION IN BELGIUM IS GOVERNED BY THE FOLLOWING THREE PRINCIPLES :
- THE CLASSIFICATION OF WHOLESALERS AND RETAILERS INTO CATEGORIES AND THE LAYING DOWN BOTH FOR WHOLESALE AND RETAIL TRADE OF MAXIMUM GRADED REBATES TO BE GRANTED ON INVOICES TO CUSTOMERS AND THE MINIMUM REQUIREMENTS ( DEGREE OF SPECIALIZATION IN TOBACCO PRODUCTS , VOLUME OF SALES , NUMBER OF BRANDS OFFERED AND NUMBER OF SALES OUTLETS SERVED ) FOR ENTITLEMENT ;
- THE PAYMENT BY FEDETAB TO THE WHOLESALER OR RETAILER OF AN END-OF-YEAR REBATE CALCULATED ON THE BASIS OF HIS CIGARETTE PURCHASES OF ALL BRANDS MADE DURING THE YEAR FROM ANY BELGIAN OR FOREIGN MANUFACTURER WHETHER OR NOT A MEMBER OF FEDETAB ;
- THE PRINCIPLE OF CASH PAYMENT WITH THE OPPORTUNITY OF GRANTING SPECIAL PERIODS OF CREDIT NOT EXCEEDING A FORTNIGHT FROM THE DATE OF THE INVOICE .
104 IT IS APPARENT FROM THAT ANALYSIS THAT THE VARIOUS MEASURES ADOPTED PRIOR TO 1 DECEMBER 1975 AND THOSE CONTAINED IN THE RECOMMENDATION , EVEN THOUGH DIFFERING IN CERTAIN RESPECTS , HAD BASICALLY SIMILAR AIMS CONCERNING THE PROFIT MARGINS OF WHOLESALERS AND RETAILERS ( HEREINAFTER REFERRED TO AS ' ' TRADE MARGINS ' ' ), END-OF-YEAR REBATES AND TERMS OF PAYMENT .
105 FOR THE PURPOSE OF CONSIDERING THE QUESTION WHETHER THE OBJECT OR EFFECT OF THE CONTESTED MEASURES IS TO PREVENT , RESTRICT OR DISTORT COMPETITION WITHIN THE COMMON MARKET IT IS AS WELL TO CONSIDER SEPARATELY FIRST OF ALL THE MEASURES RELATING TO THE TRADE MARGINS , END-OF-YEAR REBATE AND TERMS OF PAYMENT FOR THE WHOLE OF THE TWO