BEHAVIOUR OF THE COMPANIES CONCERNED, PARTICULARLY IN A STAGNANT AND HIGHLY OLIGOPOLISTIC MARKET SUCH AS THAT FOR CIGARETTES, WHERE ANY ATTEMPT TO INCREASE THE MARKET SHARE OF ONE COMPANY WILL BE AT THE EXPENSE OF ITS COMPETITORS . THE ESTABLISHMENT OF LINKS BETWEEN TWO OF THE LARGEST FIRMS ON THE MARKET FOR CIGARETTES WILL DESTROY THE COMPETITIVE BALANCE .
33 ACCORDING TO THE APPLICANTS, THE TRANSACTION IN QUESTION NOT ONLY HAS THE EFFECT OF RESTRICTING COMPETITION BUT WAS INTENDED TO DO SO . THAT IS CLEAR FROM THE RELATIONSHIP BETWEEN THE AGREEMENTS IN ISSUE AND THE ORIGINAL 1981 AGREEMENTS WHICH PROVIDED FOR COMMERCIAL COOPERATION BETWEEN THE PARTIES . IT WAS BY MEANS OF THE RIGHTS WHICH IT OBTAINED UNDER THE ORIGINAL AGREEMENTS THAT PHILIP MORRIS WAS ABLE TO ACQUIRE A DIRECT SHAREHOLDING IN ROTHMANS INTERNATIONAL, AND THERE IS NO INDICATION THAT THE IDEA OF COMMERCIAL COOPERATION WAS ABANDONED, ESPECIALLY SINCE THE PRICE PAID BY PHILIP MORRIS REMAINED THE SAME . THE INTENTION OF PHILIP MORRIS AND ROTHMANS INTERNATIONAL TO COOPERATE ON THE COMMUNITY MARKET IS CONFIRMED, MOREOVER, BY THE FACT THAT THEY HAVE AGREEMENTS TO COOPERATE IN INDONESIA, MALAYSIA AND THE PHILIPPINES .
34 THE APPLICANTS ALSO SUBMIT THAT THE ANTI-COMPETITIVE EFFECT AND INTENTION OF THE AGREEMENTS AT ISSUE ARE REINFORCED BY THE CLAUSES PROVIDING FOR A RIGHT OF FIRST REFUSAL IN THE EVENT THAT ONE OF THE PARTIES SHOULD WISH TO DISPOSE OF ITS SHAREHOLDING IN ROTHMANS INTERNATIONAL . THOSE CLAUSES ARE INTENDED TO PRESERVE FOR PHILIP MORRIS THE POSSIBILITY OF ACQUIRING CONTROL OF ROTHMANS INTERNATIONAL, AND SHOW THAT ITS ACQUISITION OF AN EQUITY INTEREST IS NOT A SIMPLE PASSIVE INVESTMENT . THE FACT THAT THE EXERCISE OF THE RIGHTS GRANTED BY THOSE CLAUSES WOULD BE CONTRARY TO ARTICLE 85 IS SUFFICIENT IN ITSELF TO JUSTIFY A FINDING THAT THE OBJECT OF THE AGREEMENTS IS TO RESTRICT COMPETITION .
35 FINALLY, THE UNDERTAKINGS REQUIRED BY THE COMMISSION ARE, ACCORDING TO THE APPLICANTS, IN NO WAY SUFFICIENT TO RID THE AGREEMENTS OF THEIR ANTI-COMPETITIVE NATURE . FIRST OF ALL, THE UNDERTAKINGS REGARDING THE EXISTING MANAGEMENT OF ROTHMANS INTERNATIONAL DO NOT PREVENT PHILIP MORRIS FROM EXERTING INFORMAL INFLUENCE IN ITS CAPACITY AS A SUBSTANTIAL SHAREHOLDER IN ROTHMANS INTERNATIONAL . FURTHERMORE, THE UNDERTAKINGS REGARDING THE SEPARATION OF THE INTERESTS OF PHILIP MORRIS AND ROTHMANS INTERNATIONAL SHOULD PHILIP MORRIS EXERCISE ITS RIGHT OF FIRST REFUSAL CONCERN THE PERIOD FOLLOWING AN INFRINGEMENT OF ARTICLE 85 AND WOULD NOT EVEN APPLY IF PHILIP MORRIS GAINED EFFECTIVE CONTROL OF ROTHMANS INTERNATIONAL ON THE SALE OF REMBRANDT' S SHAREHOLDING TO AT LEAST 10 PURCHASERS INDEPENDENT OF EACH OTHER AND OF PHILIP MORRIS .
36 IT SHOULD BE RECALLED THAT THE AGREEMENTS PROHIBITED BY ARTICLE 85 ARE THOSE WHICH HAVE AS THEIR OBJECT OR EFFECT THE PREVENTION, RESTRICTION OR DISTORTION OF COMPETITION WITHIN THE COMMON MARKET .
37 ALTHOUGH THE ACQUISITION BY ONE COMPANY OF AN EQUITY INTEREST IN A COMPETITOR DOES NOT IN ITSELF CONSTITUTE CONDUCT RESTRICTING COMPETITION, SUCH AN ACQUISITION MAY NEVERTHELESS SERVE AS AN INSTRUMENT