SUBJECT TO RESTRICTIVE PRACTICES SUCH AS THOSE APPLIED BY HUGIN IN THIS INSTANCE .
23IT SHOULD BE RECALLED IN THIS RESPECT THAT THE VALUE OF THE SPARE PARTS IS IN ITSELF RELATIVELY INSIGNIFICANT . ACCORDINGLY THEY ARE NOT SUCH AS TO CONSTITUTE A COMMODITY OF COMMERCIAL INTEREST IN TRADE BETWEEN MEMBER STATES , QUITE APART FROM THE FACT THAT AN INDEPENDENT UNDERTAKING WOULD DERIVE NO ECONOMIC ADVANTAGE FROM BUYING THEM FROM A HUGIN SUBSIDIARY IN ANOTHER MEMBER STATE RATHER THAN FROM THE PARENT COMPANY . INDEED , IT HAS NOT BEEN ALLEGED THAT HUGIN APPLIES DIFFERENTIATED PRICES ON THE VARIOUS LOCAL MARKETS . IT IS LOGICAL TO SUPPOSE THAT AN INDEPENDENT UNDERTAKING WHICH COULD NOT OBTAIN A SPARE PART FROM THE HUGIN SUBSIDIARY ESTABLISHED IN ITS COUNTRY WOULD TURN TO THE PARENT COMPANY , THAT IS TO SAY , IN THIS INSTANCE , TO A SUPPLIER BASED IN A NON-MEMBER COUNTRY , RATHER THAN TO A SUBSIDIARY IN ANOTHER MEMBER STATE . IF THE LATTER COURSE WERE FOLLOWED IT WOULD CONSTITUTE AN EXCEPTION RATHER THAN A NORMAL COMMERCIAL TRANSACTION .
24IN THE PRESENT CASE LIPTONS TURNED TO HUGIN SUBSIDIARIES AND DISTRIBUTORS IN CERTAIN OTHER MEMBER STATES PRECISELY BECAUSE HUGIN ' S RESTRICTIVE POLICY PREVENTED IT FROM SATISFYING ITS SPARE PARTS REQUIREMENTS THROUGH NORMAL COMMERCIAL CHANNELS . ITS ATTEMPTS TO OBTAIN SPARE PARTS IN THE OTHER MEMBER STATES CAN THEREFORE NOT BE REGARDED AS AN INDICATION OF THE EXISTENCE , WHETHER ACTUAL OR POTENTIAL , OF A NORMAL PATTERN OF TRADE BETWEEN THE MEMBER STATES IN SPARE PARTS . IN OTHER WORDS , IF LIPTONS HAD BEEN ABLE TO OBTAIN SPARE PARTS FROM A HUGIN SUBSIDIARY IN ANOTHER MEMBER STATE IT WOULD HAVE BEEN BECAUSE HUGIN WAS WILLING TO SELL THOSE PARTS OUTSIDE ITS OWN DISTRIBUTION NETWORK . IN SUCH A CASE , HOWEVER , IT WOULD BE CUSTOMARY FOR LIPTONS TO APPLY TO THE HUGIN SUBSIDIARY IN ITS OWN COUNTRY RATHER THAN TO A SUBSIDIARY IN ANOTHER MEMBER STATE .
25IN THOSE CIRCUMSTANCES HUGIN ' S CONDUCT CANNOT BE REGARDED AS HAVING THE EFFECT OF DIVERTING THE MOVEMENT OF GOODS FROM ITS NORMAL CHANNELS , TAKING ACCOUNT OF THE ECONOMIC AND TECHNICAL FACTORS PECULIAR TO THE SECTOR IN QUESTION .
26IT MUST THEREFORE BE CONCLUDED THAT HUGIN ' S CONDUCT IS NOT CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES . CONSEQUENTLY THE COMMISSION ' S DECISION DOES NOT SATISFY ALL THE CONDITIONS LAID DOWN BY ARTICLE 86 OF THE TREATY . IT MUST THEREFORE BE ANNULLED .
Decision on costs
COSTS
27ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS IT SHOULD BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . ANNULS THE COMMISSION DECISION OF 8 DECEMBER 1977 RELATING TO A PROCEEDING UNDER ARTICLE