: 676J0085.184IN SOME OF THE CONTRACTS THE PURCHASER UNDERTOOK TO ' ' GIVE PREFERENCE TO ROCHE ' ' ( WYETH ) OR EXPRESSED ITS ' ' INTENTION ' ' TO OBTAIN ITS SUPPLIES EXCLUSIVELY FROM ROCHE ( CAPSUGEL/PARKE DAVIS ) OR AGREED TO RECOMMEND ITS SUBSIDIARIES TO DO THE SAME ( SANDOZ ), EITHER IN RESPECT OF ALL THEIR VITAMIN REQUIREMENTS OR OF CERTAIN VITAMINS THEREIN SPECIFIED ( CAPSUGEL/PARKE DAVIS : A , B1 , B2 , B6 , C , E , H ) OR AGAIN IN RELATION TO A FIXED PERCENTAGE OF THEIR TOTAL REQUIREMENTS ( PROTECTOR : 80% ).
85FINALLY THE CONTRACTS CONCLUDED WITH MERCK AND UNILEVER RESPECTIVELY HAD SPECIAL FEATURES WHICH MAKES IT DESIRABLE TO EXAMINE SEPARATELY THE UNDERTAKINGS WHICH THEY CONTAINED .
86THE DURATION OF MOST OF THE CONTRACTS WAS FOR AN INDEFINITE PERIOD , EITHER ACCORDING TO THE TERMS THEREOF OR BECAUSE OF THE OPERATION OF A CLAUSE PROVIDING FOR RENEWAL BY TACIT AGREEMENT , AND THEY WERE CLEARLY DESIGNED TO ESTABLISH TRADING RELATIONS FOR SEVERAL YEARS .
MOST OF THE CONTRACTS WERE ENTERED INTO AS FAR BACK AS 1970 AND WERE IN FORCE DURING THE WHOLE OR PART OF THE PERIOD 1970 TO 1974 .
87ALL THE ABOVE-MENTIONED CONTRACTS WITH THE EXCEPTION OF THOSE ENTERED INTO WITH UNILEVER PROVIDED FOR THE GRANT , UNDER VARIOUS NAMES , OF DISCOUNTS OR REBATES CALCULATED ON THE TOTAL PURCHASES OF VITAMINS , WHATEVER GROUP THE LATTER BELONG TO , DURING A GIVEN PERIOD USUALLY OF A YEAR OR SIX MONTHS .
IT WAS A SPECIAL FEATURE OF THE CONTRACTS WITH BEECHAM , ISAAC SPENCER , NITROVIT , PAULS AND WHITES , SANDOZ AND WYETH THAT THE PERCENTAGE OF THE REBATES PROVIDED FOR WAS NOT FIXED BUT INCREASED - IN GENERAL FROM 1% TO 3% - ACCORDING TO THE AMOUNTS PURCHASED EVERY YEAR .
EXCEPT IN THE CASE OF ANIMEDICA INTERNATIONAL , GUYOMARC ' H , MERCK B6 , PROTECTOR AND UPJOHN , THE CONTRACTS CONTAINED A CLAUSE , CALLED THE ENGLISH CLAUSE , UNDER THE TERMS OF WHICH THE CUSTOMERS COULD - BY ADOPTING VARIOUS METHODS WHICH WILL BE EXAMINED LATER ON - BRING TO ROCHE ' S NOTICE BY WAY OF COMPARISON MORE FAVOURABLE OFFERS FROM COMPETITORS WITH THE RESULT THAT , IF ROCHE DID NOT ADJUST ITS PRICES , THE CUSTOMER AFFECTED WAS RELEASED , AS FAR AS THAT PURCHASE WAS CONCERNED , FROM ITS OBLIGATION TO OBTAIN SUPPLIES EXCLUSIVELY FROM ROCHE , OR , IF NO SUCH SPECIFIC OBLIGATION HAD BEEN STIPULATED , COULD PURCHASE FROM THE SAID COMPETITORS WITHOUT THEREBY LOSING IN EITHER CASE , AS FAR AS CONCERNS PAST OR FUTURE PURCHASES , THE BENEFIT OF THE ABOVE-MENTIONED REBATE .
88IT IS IN THE LIGHT OF THESE SPECIAL FEATURES THAT IT IS NECESSARY TO CONSIDER WHETHER THE DISPUTED CONTRACTS WERE AN ABUSE BY ROCHE OF ITS DOMINANT POSITION .
SECTION 3 : THE DETERMINATION , IN THE LIGHT OF ARTICLE 86 OF THE TREATY , OF THE LEGAL NATURE OF THE