ITS POLICY OF LOWERING EXPORT PRICES .
15IT IS CLEAR FROM THE FOREGOING AS A WHOLE THAT THE CLAUSES IN DISPUTE WERE SUCH AS TO AFFECT TRADE BETWEEN MEMBER STATES .
MILLER INDEED ALLEGES THAT THE COMMISSION SHOULD HAVE ESTABLISHED THAT THOSE CLAUSES HAD AN APPRECIABLE EFFECT ON INTRA-COMMUNITY TRADE BUT THAT ARGUMENT CANNOT BE ACCEPTED .
IN PROHIBITING AGREEMENTS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES AND WHICH HAVE AS THEIR OBJECT OR EFFECT THE RESTRICTION OF COMPETITION ARTICLE 85 ( 1 ) OF THE TREATY DOES NOT REQUIRE PROOF THAT SUCH AGREEMENTS HAVE IN FACT APPRECIABLY AFFECTED SUCH TRADE , WHICH WOULD MOREOVER BE DIFFICULT IN THE MAJORITY OF CASES TO ESTABLISH FOR LEGAL PURPOSES , BUT MERELY REQUIRES THAT IT BE ESTABLISHED THAT SUCH AGREEMENTS ARE CAPABLE OF HAVING THAT EFFECT .
THE COMMISSION , BASING ITS ASSESSMENT ON MILLER ' S POSITION ON THE MARKET , ITS SCALE OF PRODUCTION , ASCERTAINABLE EXPORTS AND PRICE POLICY , HAS PROVIDED APPROPRIATE PROOF THAT IN FACT THERE WAS A DANGER THAT TRADE BETWEEN MEMBER STATES WOULD BE APPRECIABLY AFFECTED .
16THE CONTESTED DECISION WAS THUS JUSTIFIED IN ITS FINDING THAT IN THE CONTESTED CLAUSES PROHIBITING EXPORTS MILLER INFRINGED THE PROVISIONS OF THE SAID ARTICLE .
CONSEQUENTLY , THE APPLICATION MUST BE DISMISSED IN SO FAR AS IT IS DIRECTED AGAINST ARTICLE 1 OF THAT DECISION .
THE FINE
17THE APPLICANT HAS REQUESTED IN THE ALTERNATIVE THAT THE FINE OF 70 000 U.A . SHOULD BE ANNULLED OR REDUCED .
IT HAS MAINTAINED THAT IT DID NOT INTENTIONALLY COMMIT THE INFRINGEMENTS OF WHICH IT IS ACCUSED AND FURTHERMORE THAT THOSE INFRINGEMENTS WERE NOT SERIOUS .
IT CLAIMS THAT IN ADOPTING THE CLAUSES PROHIBITING EXPORTS IT DID NOT INTENTIONALLY INFRINGE THE PROHIBITIONS CONTAINED IN ARTICLE 85 ( 1 ) OF THE TREATY .
THIS LACK OF AWARENESS IS SAID TO BE DEMONSTRATED BY THE OPINION OF A LEGAL ADVISER CONSULTED BY THE APPLICANT CONCERNING THE DRAFTING OF ITS TERMS AND CONDITIONS OF SALE , WHICH OPINION , PRODUCED AS AN ANNEX TO ITS REPLY , DOES NOT MENTION THE FACT THAT A CLAUSE PROHIBITING EXPORTS MIGHT BE INCOMPATIBLE WITH COMMUNITY LAW .
18AS IS CLEAR FROM THE FOREGOING AS A WHOLE , THE CLAUSES IN QUESTION WERE ADOPTED OR ACCEPTED BY THE APPLICANT AND THE LATTER COULD NOT HAVE BEEN UNAWARE THAT THEY HAD AS THEIR OBJECT THE RESTRICTION OF COMPETITION BETWEEN ITS CUSTOMERS .
CONSEQUENTLY , IT IS OF LITTLE RELEVANCE TO ESTABLISH WHETHER THE APPLICANT KNEW THAT IT WAS INFRINGING THE PROHIBITION CONTAINED IN ARTICLE 85 .
IN THIS CONNEXION THE OPINION OF A LEGAL ADVISER , ON WHICH IT RELIES , IS NOT A MITIGATING FACTOR .
IT MUST THUS BE HELD THAT THE ACTS PROHIBITED BY THE TREATY WERE UNDERTAKEN INTENTIONALLY AND IN DISREGARD OF THE PROVISIONS OF THE TREATY .
19WITH REGARD TO THE GRAVITY OF THE INFRINGEMENT , THE CLAUSES PROHIBITING EXPORTS CONSTITUTE A FORM OF RESTRICTION ON COMPETITION WHICH BY ITS VERY NATURE