TO A RETAILER SELLING THEIR PRODUCTS .
37 IN THE COMMISSION ' S VIEW , THE BONUS SCHEME ENCOURAGES RETAILERS TO CONCENTRATE THEIR CIGARETTE PURCHASES ON MANUFACTURERS WHO ARE PARTIES TO THE SCHEME . THAT EFFECT STEMS LARGELY FROM THE OBLIGATION PLACED ON RETAILERS TO ACHIEVE A FAIRLY HIGH LEVEL OF SALES OF PRODUCTS OF MANUFACTURERS WHO ARE PARTIES TO THE SCHEME IN ORDER TO BECOME ENTITLED TO THE REBATE .
38 IN THAT REGARD CERTAIN ASPECTS OF THE BONUS SCHEME MUST BE BORNE IN MIND . IN THE FIRST PLACE , ONLY RETAILERS WHO ACHIEVE A MINIMUM LEVEL OF SALES OF PRODUCTS OF MANUFACTURERS WHO ARE PARTIES TO THE SCHEME ARE ENTITLED TO A REBATE . THE NSO ITSELF ADMITS THAT THAT SALES FIGURE IS QUITE HIGH AND THAT QUITE A LARGE NUMBER OF RETAILERS DO NOT ACHIEVE IT . SECONDLY , THE SALES FIGURE IS CALCULATED AT THE END OF EACH YEAR . FINALLY , IF THE SALES FIGURE IS ACHIEVED , THE REBATE IS CALCULATED ON THE BASIS OF ALL PURCHASES MADE .
39 SUCH A SYSTEM ACTS TO THE DETRIMENT OF MANUFACTURERS WHO ARE NOT PARTIES TO THE SCHEME . IN THE COURSE OF THE YEAR IT IS IN THE INTERESTS OF RETAILERS TO CONCENTRATE THEIR PURCHASES ON MANUFACTURERS WHO ARE PARTIES TO THE SCHEME SO AS TO ACHIEVE THE MINIMUM SALES FIGURE , ADMITTED TO BE HIGH , AND THUS TO BECOME ENTITLED TO A REBATE OF 75 CENTS PER 1 000 CIGARETTES . BY BUYING FROM A THIRD PARTY A RETAILER RUNS THE RISK OF NOT ACHIEVING THAT SALES FIGURE AT THE END OF THE YEAR AND THUS OF LOSING THE BENEFIT OF THE REBATE . IN ORDER TO COMPENSATE FOR THAT RISK OF LOSS THE THIRD PARTY MUST OFFER A REBATE AT LEAST EQUAL TO THAT WHICH WOULD BE OBTAINED FROM THE MANUFACTURERS WHO ARE PARTIES TO THE SCHEME IN RESPECT OF 1.5 MILLION CIGARETTES , EVEN WHERE HE SEEKS TO SELL A SMALLER QUANTITY .
40 FURTHERMORE , IT IS ONLY AT THE END OF THE YEAR THAT THE RETAILERS KNOW WHETHER OR NOT THEY HAVE ACHIEVED THE MINIMUM SALES FIGURE . UNTIL THAT TIME THEY ARE IN A SITUATION OF UNCERTAINTY , AND THAT UNCERTAINTY WILL TEND TO INDUCE ALL RETAILERS , INCLUDING THOSE WHO WILL NOT IN THE END BE ENTITLED TO THE REBATE , TO CONCENTRATE THEIR PURCHASES ON THE PARTIES TO THE SCHEME .
41 THE NSO GOES ON TO ARGUE THAT RETAILERS WHO DO NOT PARTICIPATE IN THE BONUS SCHEME DO NOT SUFFER ANY LOSS SINCE THEY MAY INDIVIDUALLY OR COLLECTIVELY NEGOTIATE REBATE AGREEMENTS WITH MANUFACTURERS AND IMPORTERS .
42 FOR THE COMMISSION , THE GRANT OF A REBATE TO CERTAIN RETAILERS AMOUNTS TO DISCRIMINATION , FALLING UNDER ARTICLE 85 ( 1 ) ( D ) OF THE TREATY , AGAINST RETAILERS EXCLUDED FROM THE SCHEME . THE FACT THAT THE LATTER MAY NEGOTIATE INDIVIDUAL AGREEMENTS IS IRRELEVANT TO THE FACT THAT THEY ARE IN ANY EVENT