SO FAR AS THE APPLICANT MAINTAINS THAT THE SPECIAL NATURE OF THE INSURANCE SECTOR INVOLVES THE NEED FOR THE UNDERTAKINGS CONCERNED TO COLLABORATE IN THE STATISTICAL STUDIES WHICH ARE INDISPENSABLE FOR THE CALCULATION OF THE LOSS RATIO, IT MUST BE STATED THAT THE CONTESTED DECISION DOES NOT RELATE TO SUCH A FORM OF COLLABORATION .
25 THE SECOND SUBMISSION MUST THEREFORE BE REJECTED .
THIRD SUBMISSION : THE NON-BINDING NATURE OF THE RECOMMENDATION
26 THE CONTESTED DECISION FINDS THAT THE VERBAND DER SACHVERSICHERER IS AN ASSOCIATION OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE EEC TREATY AND THAT THE RECOMMENDATION TO RE-ESTABLISH STABLE AND VIABLE CONDITIONS OF JUNE 1980 WAS ADOPTED BY THE COMPETENT BODY UNDER THE ASSOCIATION' S STATUTES AND WAS DULY BROUGHT TO THE NOTICE OF ITS MEMBERS AS AN OFFICIAL STATEMENT OF THE ASSOCIATION' S POLICY BY THE SECRETARY GENERAL ACTING WITHIN THE POWERS CONFERRED ON HIM . ALTHOUGH THE TITLE OF THE RECOMMENDATION DESCRIBES IT AS "NON-BINDING", IT IS NEVERTHELESS IN THE NATURE OF A "DECISION" OF AN ASSOCIATION OF UNDERTAKINGS . IT IS SUFFICIENT THAT THE RECOMMENDATION IS IN CONFORMITY WITH THE ASSOCIATION' S STATUTES AND THAT IT WAS BROUGHT TO THE NOTICE OF ITS MEMBERS AS A STATEMENT OF THE POLICY OF THE ASSOCIATION OF UNDERTAKINGS IN THE MANNER LAID DOWN THEREIN .
27 THE APPLICANT CONTENDS THAT, AS IS INDICATED BY ITS TITLE, THE RECOMMENDATION IS NOT AT ALL BINDING IN NATURE . THE COMMITTEE OF EXPERTS ON INDUSTRIAL FIRE AND CONSEQUENTIAL LOSS INSURANCE, WHICH PRODUCED THE RECOMMENDATION, IS COMPETENT MERELY TO EXAMINE TECHNICAL PROBLEMS AND NOT TO ADOPT DECISIONS BINDING ON THE ASSOCIATION OR ITS MEMBERS . THE ONLY ORGANS OF THE ASSOCIATION WITH THE POWER TO ADOPT DECISIONS OF SUCH A NATURE ARE THE GENERAL MEETING OF ITS MEMBERS AND THE BUREAU . IN FACT NEITHER OF THOSE ORGANS ADOPTED A DECISION WITH REGARD TO THE RECOMMENDATION .
28 THE COMMISSION REPLIES THAT THE VERBAND DER SACHVERSICHERER WAS AUTHORIZED BY ITS STATUTES TO REGULATE THE COMMERCIAL CONDUCT OF ITS MEMBERS AND THAT THE COMMITTEE OF EXPERTS WHICH PRODUCED THE RECOMMENDATION WAS EMPOWERED, ACCORDING TO THE PROVISIONS OF THOSE STATUTES, TO ADOPT DECISIONS AND RECOMMENDATIONS BINDING ON THE ASSOCIATION . IN ADDITION, THE RECOMMENDATIONS OF AN ASSOCIATION OF UNDERTAKINGS, WHICH ARE FORMULATED BY COMMITTEES ACTING WITHIN THE FRAMEWORK OF THE ASSOCIATION AND WHICH ARE COMMUNICATED TO THE ASSOCIATION' S MEMBERS, CONSTITUTE THE EXPRESSION OF A CONCERTED PRACTICE PUT INTO EFFECT BY THE UNDERTAKINGS AFFILIATED TO THE ASSOCIATION WITH THE OBJECT OF RESTRICTING COMPETITION BETWEEN THOSE UNDERTAKINGS .
29 IN THAT CONNECTION ACCOUNT MUST BE TAKEN OF VARIOUS FACTORS . IN THE FIRST PLACE IT IS COMMON GROUND THAT THE INSURERS WHO ARE MEMBERS OF THE VERBAND DER SACHVERSICHERER HAD A COMMON INTEREST IN PUTTING THE MARKET ON A VIABLE FOOTING BY MEANS OF AN INCREASE IN PREMIUMS WHICH HAD FALLEN CONSIDERABLY BETWEEN 1973 AND 1980 IN THE INDUSTRIAL FIRE INSURANCE SECTOR, WHEREAS THE LOSS RATIO AND INSURERS'