OF THE TREATY . ADMITTEDLY , IT IS REGRETTABLE AND INCONSISTENT WITH THE REQUIREMENTS OF GOOD ADMINISTRATION THAT THE COMMISSION DID NOT REACT TO THE DRAFT ' ' SPECIAL AGREEMENT ' ' WHICH WAS SUBMITTED TO IT PRECISELY FOR THE PURPOSE OF EFFECTING SUCH AN ALIGNMENT . HOWEVER , IT IS COMMON GROUND THAT THE DRAFT DID NOT TAKE ACCOUNT OF ALL THE COMMISSION ' S OBJECTIONS . IN THOSE CIRCUMSTANCES , THE FACT THAT THE COMMISSION DID NOT AT THAT STAGE CONTINUE THE CORRESPONDENCE WITH THE APPLICANT CANNOT BE REGARDED AS A PROCEDURAL DEFECT VITIATING THE LEGALITY OF THE DECISON .
16 AS REGARDS THE APPLICANT ' S COMPLAINT THAT THE COMMISSION MADE THE DECISION PUBLIC BEFORE NOTIFYING IT TO THE ADDRESSEES , IT MUST BE STATED THAT , HOWEVER REGRETTABLE SUCH CONDUCT MIGHT BE , THE DECISION HAD ALREADY BEEN ADOPTED AND ITS VALIDITY CANNOT BE AFFECTED BY ACTS SUBSEQUENT TO ITS ADOPTION .
17 THEREFORE THAT SUBMISSION ALSO MUST BE DISMISSED .
APPLICABILITY OF ARTICLE 85 ( 1 ) OF THE TREATY
18 ANSEAU ( CASE 108/82 ) AND MIELE ( CASE 110/82 ) CONTEND , MOREOVER , THAT THE AGREEMENT DOES NOT EXHIBIT THE CHARACTERISTICS CONSTITUTING AN INFRINGEMENT OF ARTICLE 85 ( 1 ) OF THE TREATY .
19 IN THE FIRST PLACE , ANSEAU OBSERVES THAT THERE CAN BE NO QUESTION OF AN ' ' AGREEMENT BETWEEN UNDERTAKINGS ' ' WITHIN THE MEANING OF THE ABOVE-MENTIONED PROVISION . ANSEAU IS AN ASSOCIATION OF UNDERTAKINGS WHICH DOES NOT ITSELF CARRY ON ANY ECONOMIC ACTIVITY . ARTICLE 85 ( 1 ) OF THE TREATY IS THEREFORE APPLICABLE TO IT ONLY IN SO FAR AS ITS MEMBER UNDERTAKINGS ARE LEGALLY BOUND BY THE AGREEMENT . IN FACT THEY ARE NOT SINCE , UNDER BOTH THE AGREEMENT AND THE STATUTES OF ANSEAU , THE LATTER IS EMPOWERED ONLY TO MAKE RECOMMENDATIONS .
20 AS THE COURT HAS ALREADY HELD , IN ITS JUDGMENTS OF 15 MAY 1975 IN CASE 71/74 ( FRUBO ( 1975 ) ECR 563 ) AND OF 29 OCTOBER 1980 IN JOINED CASES 209 TO 215 AND 218/78 VAN LANDEWYCK ( 1980 ) ECR 3125 , ARTICLE 85 ( 1 ) OF THE TREATY APPLIES ALSO TO ASSOCIATIONS OF UNDERTAKINGS IN SO FAR AS THEIR OWN ACTIVITIES OR THOSE OF THE UNDERTAKINGS AFFILIATED TO THEM ARE CALCULATED TO PRODUCE THE RESULTS WHICH IT AIMS TO SUPPRESS . IT IS CLEAR PARTICULARLY FROM THE LATTER JUDGMENT THAT A RECOMMENDATION , EVEN IF IT HAS NO BINDING EFFECT , CANNOT ESCAPE ARTICLE 85 ( 1 ) WHERE COMPLIANCE WITH THE RECOMMENDATION BY THE UNDERTAKINGS TO WHICH IT IS ADDRESSED HAS AN APPRECIABLE INFLUENCE ON COMPETITION IN THE MARKET IN QUESTION .
21 IN THE LIGHT OF THAT CASE-LAW , IT MUST BE EMPHASIZED , AS THE COMMISSION HAS PERTINENTLY STATED , THAT THE RECOMMENDATIONS MADE BY ANSEAU UNDER THE AGREEMENT TO THE EFFECT THAT ITS MEMBER UNDERTAKINGS WERE TO TAKE ACCOUNT OF THE TERMS AND OF THE PURPOSE