ON COMPETITION IN FRANCE AND ITALY WHERE THERE ARE STATE MONOPOLIES FOR TOBACCO PRODUCTS .
83 IN SUPPORT OF THAT ARGUMENT FEDETAB ALLEGED THAT PENETRATION OF THE FRENCH AND ITALIAN MARKETS IS OBSTRUCTED BY MANY SERIOUS OBSTACLES OF A LEGAL AND ADMINISTRATIVE NATURE , WHICH IT LISTS IN ITS ORIGINATING APPLICATION . ANSWERING IN ITS REPLY THE EXPLANATIONS OF THE COMMISSION RELATING TO THE PROCEEDINGS WHICH THE COMMISSION HAS COMMENCED FOR THE PURPOSE OF ADJUSTING THOSE MONOPOLIES , FEDETAB STATES THAT IT REMAINS CONVINCED THAT THE COMMISSION HAS NOT OBSERVED THE LIMITS WHICH THE PRINCIPLE OF EQUALITY OF UNDERTAKINGS VIS-A-VIS THE TREATY PLACES ON ITS DISCRETION .
84 THAT ARGUMENT MUST BE REJECTED . IT IS APPARENT FROM THE FILE THAT VARIOUS ACTIONS HAVE BEEN COMMENCED BY THE COMMISSION AGAINST THE ABOVE-MENTIONED MEMBER STATES SO THAT IN FACT THE ARGUMENT IS INCORRECT . IN ANY EVENT EVEN ON THE ASSUMPTION THAT THE COMMISSION HAS FAILED TO FULFIL CERTAIN OF ITS OBLIGATIONS UNDER ARTICLE 155 OF THE TREATY BY FAILING TO ENSURE THE APPLICATION OF THE COMMUNITY LAW ON COMPETITION AND THE ADJUSTMENT OF STATE MONOPOLIES IN THE MANUFACTURED TOBACCO SECTOR , THAT FACT CANNOT JUSTIFY ANY INFRINGEMENTS OF THE COMMUNITY LAW ON COMPETITION COMMITTED IN THE SAME SECTOR IN THE PRESENT CASES BY THE APPLICANTS .
V - SUBSTANTIVE SUBMISSIONS ON ARTICLE 85 ( 1 ) OF THE TREATY
A - WRONG ASSESSMENT OF THE NATURE AND SCOPE OF THE RECOMMENDATION
85 JUBILE AND VANDER ELST MAINTAIN THAT THE COMMISSION INFRINGED ARTICLES 85 AND 190 OF THE TREATY BY WRONGLY REGARDING THE RECOMMENDATION AS HAVING CONSTITUTED AN AGREEMENT BETWEEN UNDERTAKINGS OR A DECISION OF AN ASSOCIATION OF UNDERTAKINGS OR AS HAVING IMPOSED OBLIGATIONS ON THE APPLICANTS . TO CONSTITUTE SUCH AN AGREEMENT THE RECOMMENDATION WOULD HAVE HAD TO INVOLVE FEATURES MAKING IT A BINDING CONTRACT UNDER NATIONAL LAW . IN THE PRESENT CASE IT IS NOT SUCH A CONTRACT SINCE THE BINDING ELEMENT IS LACKING .
86 THAT ARGUMENT CANNOT BE ACCEPTED . IN THE PRESENT CASE THE APPLICANT MEMBERS OF FEDETAB INFORMED THE COMMISSION THAT THEY WISHED TO BE PARTY TO THE NOTIFICATION OF THE RECOMMENDATION AND DURING THE PROCEEDINGS BEFORE THE COURT THEY ADMITTED THAT THEY HAD COMPLIED WITH IT SINCE 1 DECEMBER 1975 . IT FOLLOWS THAT THE RECOMMENDATION IS A FAITHFUL EXPRESSION OF THE APPLICANTS ' INTENTION TO CONDUCT THEMSELVES ON THE BELGIAN CIGARETTE MARKET IN CONFORMITY WITH THE TERMS OF THE RECOMMENDATION . THE NECESSARY CONDITIONS FOR THE APPLICATION OF ARTICLE 85 ( 1 ) ARE THEREFORE SATISFIED .
87 CERTAIN APPLICANTS INCLUDING THE INTERVENER AGROTAB COMPLAIN FURTHER THAT THE COMMISSION WRONGLY TREATED THE RECOMMENDATION AS A DECISION OF AN ASSOCIATION OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 85 ( 1 ). THE RECOMMENDATION IS SAID TO HAVE BEEN MADE BY FEDETAB , A NON-PROFIT-MAKING ASSOCIATION WHICH AS SUCH DOES NOT TRADE .
88 THAT ARGUMENT CANNOT BE ACCEPTED EITHER . IT IS APPARENT FROM ARTICLE 8 OF THE STATUTES OF FEDETAB THAT THE DECISIONS