POSSESSING ANY SALES ORGANIZATION MAKING IT POSSIBLE TO MARKET IT . BEFORE 1970 IT SOLD THIS PRODUCTION VIA THE SALES AGENCY WHICH THEN OPERATED BETWEEN ALL THE GERMAN PRODUCERS OF POTASH FOR THE SUPPLY OF STRAIGHT POTASH FERTILIZERS . THE AGREEMENT IN QUESTION IS INTENDED TO ALLOW KC TO CONCENTRATE ITS EFFORTS ON THE MANUFACTURE AND SALE OF THE COMPOUND PRODUCT RHE-KA-PHOS AND LEAVES KC TO DECIDE WHAT PART OF ITS TOTAL PRODUCTION SHOULD BE SOLD IN THIS FORM AND CONSEQUENTLY THE AMOUNT OF THE SURPLUS AVAILABLE FOR SALE TO K AND S .
10 ACCORDING TO THE DECISION CHALLENGED, THE AGREEMENT COVERS THE ENTIRE PRODUCTION OF A MEMBER STATE AND BY ITS VERY NATURE AFFECTS TRADE BETWEEN MEMBER STATES .
11 THE APPLICANTS ALLEGE THAT THE DEFENDANT HAS NOT GIVEN REASONS FOR ITS DECISION ON THIS POINT, AS IS REQUIRED BY ARTICLE 190 OF THE EEC TREATY . IN THIS RESPECT ( THEY CLAIM ) NEITHER DURING THE ADMINISTRATIVE STAGE NOR DURING THE COURSE OF THE PROCEEDINGS HAS IT SUFFICIENTLY TAKEN INTO ACCOUNT KC'S ACTUAL POSITION ON THE MARKET .
12 FIRST, THE QUANTITIES OF STRAIGHT POTASH SOLD BY KC TO K AND S ARE CONSTANTLY DIMINISHING . ACCORDING TO THE DECISION CHALLENGED, KC WAS IN A POSITION TO SET UP AN INDEPENDENT SALES ORGANIZATION . THE APPLICANTS HAVE CLAIMED THAT THE COST OF SUCH AN ORGANIZATION WOULD BE PROHIBITIVE FOR KC HAVING REGARD TO ITS TURNOVER IN STRAIGHT POTASH . THE EXAMPLES WHICH THE DEFENDANT QUOTES OF A POSSIBLE JOINT MARKETING OF STRAIGHT POTASH AND COMPOUND FERTILIZER CANNOT BE RELATED TO THE POSITION OF KC, WHOSE SURPLUS PRODUCTION OF STRAIGHT POTASH IS CONSTANTLY DIMINISHING .
13 IT HAS THEREFORE NOT BEEN SHOWN THAT STRAIGHT POTASH CAN BE DISTRIBUTED BY AN ORGANIZATION WHICH MARKETS THE COMPOUND PRODUCT RHE-KA-PHOS WHICH COMPETES WITH IT .
14 IT FOLLOWS FROM THE COMBINATION OF THESE CIRCUMSTANCES THAT THE CONTINUAL REDUCTION IN THE QUANTITIES OF STRAIGHT POTASH WHICH KC HAS AVAILABLE AFTER MANUFACTURING RHE-KA-PHOS, AND FURTHER THE CONCOMITANT DECLINE IN THE REQUIREMENT OF STRAIGHT POTASH FERTILIZER IN FAVOUR OF COMPOUND FERTILIZERS COULD PREVENT KC FROM SETTING UP AN ONEROUS MARKETING APPARATUS FOR THE SALE SIMPLY OF ITS SURPLUS PRODUCTION WHICH DECREASES EACH YEAR . THIS POSITION COULD LEAD TO ALLOWING EXCEPTIONAL MEASURES TO BE TAKEN FOR THE SALE OF THIS SURPLUS PRODUCTION WITHIN THE CONTEXT OF AN AGREEMENT WHICH, IF ANALYSED, AMOUNTS FOR KC NOT TO AN OBLIGATION BUT TO AN OPTION TO SELL TO K AND S .
15 ACCORDINGLY, INSUFFICIENT REASONS APPEAR TO HAVE BEEN GIVEN FOR THE DECISION CHALLENGED, AT LEAST AS REGARDS THE REJECTION OF THE APPLICATION FOR EXEMPTION .
Decision on costs
16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL, IT IS PROPER TO ORDER IT TO PAY THE COSTS .
Operative part
THE COURT
HEREBY :
1 . ANNULS THE DECISION OF THE COMMISSION OF 21 DECEMBER