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 .
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