.
53 AS A RESULT , EVEN WHERE THERE IS NO PARTITIONING OF MARKETS AN AGREEMENT CONCLUDED BETWEEN UNDERTAKINGS ESTABLISHED IN A MEMBER STATE AND COVERING ONLY THE MARKET OF THAT STATE AFFECTS TRADE BETWEEN MEMBER STATES , WITHIN THE MEANING OF ARTICLE 85 OF THE TREATY , IF IT CONCERNS , EVEN PARTLY , A PRODUCT IMPORTED FROM ANOTHER MEMBER STATE , EVEN WHERE THE PARTIES TO THE AGREEMENT OBTAIN THE PRODUCT FROM A COMPANY BELONGING TO THEIR OWN GROUP .
54 HAVING REGARD TO THAT PRINCIPLE , THE BONUS SCHEME AFFECTS TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE TREATY , SINCE THE REBATE IS CALCULATED INTER ALIA ON THE BASIS OF CIGARETTES IMPORTED FROM OTHER MEMBER STATES .
55 THE APPLICANTS ' ARGUMENT THAT THE EFFECT ON TRADE BETWEEN MEMBER STATES IS NOT APPRECIABLE IS UNFOUNDED . A LARGE PROPORTION OF THE TOBACCO PRODUCTS MARKETED IN THE NETHERLANDS ARE IMPORTED FROM OTHER MEMBER STATES AND THE MANUFACTURERS AND IMPORTERS WHO ARE PARTIES TO THE BONUS SCHEME THEMSELVES ACCOUNT FOR THE GREAT MAJORITY OF SUCH IMPORTS . IT MUST ALSO BE POINTED OUT THAT THE BONUS SCHEME IS LIKELY TO HAMPER THE EFFORTS OF MANUFACTURERS FROM OTHER MEMBER STATES WHO ARE NOT PARTIES TO PENETRATE THE NETHERLANDS MARKET .
56 THE COMMISSION WAS THEREFORE RIGHT TO HOLD THAT THE BONUS SCHEME AND THE SSI MASTER AGREEMENT , IN SO FAR AS IT REQUIRES COMPLIANCE WITH THE SCHEME , WERE LIKELY TO AFFECT TRADE BETWEEN MEMBER STATES .
57 THE FIRST SUBMISSION MUST THEREFORE BE REJECTED IN ITS ENTIRETY .
II - SECOND SUBMISSION : FAILURE TO COMPLY WITH ARTICLE 85 ( 3 ) OF THE EEC TREATY
58 THE NSO CONSIDERS IN THE FIRST PLACE THAT THE COMMISSION ' S ANALYSIS OF THE CONDITIONS OF ENTITLEMENT UNDER THE BONUS SCHEME IS INCORRECT . CONTRARY TO THE COMMISSION ' S ASSERTIONS , THE OBLIGATION ON RETAILERS TO MAKE AT LEAST 60% OF THEIR TURNOVER FROM TOBACCO PRODUCTS DOES NOT DISCRIMINATE AGAINST SMALL SPECIALIST SHOPS BECAUSE IT IS A RELATIVE FIGURE , NOT AN ABSOLUTE ONE . IT IS NOT VERY DIFFICULT , ACCORDING TO THE NSO , TO FULFIL THE MINIMUM STOCK OBLIGATION , AND THAT MINIMUM STOCK ENABLES THEM TO MEET THE SPECIFIC REQUESTS OF CUSTOMERS . FURTHERMORE , THE OBLIGATION TO RESERVE A QUARTER OF THEIR DISPLAY SPACE FOR CIGARETTES PRESENTS NO INCONVENIENCE FOR RETAILERS , WHO WOULD CERTAINLY BE SUBJECT TO MORE STRINGENT OBLIGATIONS IF THEY HAD TO ENTER INTO INDIVIDUAL REBATE AGREEMENTS . FINALLY , THE MINIMUM SALES OBLIGATION WAS INTENDED TO MEET THE AUTHORITIES ' CONCERN THAT ONLY VIABLE RETAIL BUSINESSES SHOULD BE ENCOURAGED .
59 THE NSO GOES ON TO ARGUE THAT THE BONUS SCHEME SHOULD HAVE BEEN GRANTED EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY . FIRST OF ALL , RETAILERS , WHO ARE THE ' CUSTOMERS ' OF THE SCHEME , ARE HAPPY TO OBTAIN A REBATE . FURTHERMORE , BY